Comcast confirms that its outside mediation with
Tennis Channel to try to resolve a carriage complaint has failed and the
dispute will now go before an FCC administrative law judge.
"Although it is disappointing that a resolution
could not be reached," said Sena Fitzmaurice, Comcast VP, government
communications, in a statement, "we now look forward to refuting Tennis
Channel's flawed complaint in a full evidentiary hearing before an
Administrative Law Judge at the FCC."
The FCC designated the dispute for a hearing last
month, saying there were "substantial and material question of fact as to
whether Comcast has engaged in conduct that violates the program carriage
provisions of the ACT and the Commission's rules." But it also gave the
parties an option of making one last try through outside mediation, which both
agreed to.
Now, the judge will make a finding based on the
evidence presented, though the commission has the ultimate decision on the
complaint. The FCC made clear that beyond a finding that, contrary to Comcast
assertions, the statute of limitations on the complaint had not run out, the
jury is still out on the merits of the case. But the FCC's Media Bureau said in
referring the complaint to the judge, that on the face of it, Tennis Channel
has made a case for program carriage discrimination by Comcast. The judge will
look at the case de novo, meaning from scratch, and is directed not to take
that FCC determination into account.
Tennis Channel argues that Comcast is favoring its
own similarly situated networks Versus and Golf Channel by placing them on more
widely viewed tiers. The complaint stems from Comcast's decision to keep the
Tennis Channel on a premium sports tier rather than a more broadly distributed
programming tier.
Comcast Tuesday reiterated its statement from
October, when the case was first designated for hearing. "Comcast
currently makes the Tennis Channel available to nearly every home we serve,
fully consistent with the terms of our affiliation agreement with the Tennis
Channel. That affiliation agreement was fairly negotiated and agreed upon in
2005, and there is no dispute that it specifically permits us to carry Tennis
Channel as part of our Sports Entertainment Package, where we currently offer
it to our customers. Far from discriminating against Tennis Channel, we are
carrying it in a manner similar to many other distributors and fully honoring
the terms of the parties' agreement. We plan to continue carrying the network for
our customers and tennis fans."
Tennis Channel filed the complaint in February 2010. It has been trying
to get on Comcast's basic tier for some time--Comcast declined to reposition
the channel when Tennis Channel proposed it last year, saying it would be
"cost-prohibitive." But Comcast's high-profile play for NBCU provided
an opportunity for Tennis to try and leverage the attention on the deal.
