In the Tennis Channel’s Section
616 “program carriage” complaint, an
administrative law judge ruled it was
unfair discrimination when Comcast
said no to the Tennis Channel’s request
— made during an existing contract
term — to be included in the same
programming tier as the Comcast-affiliated Golf Channel and Versus (now
NBC Sports Network). The administrative
law judge ordered Comcast to carry
the Tennis Channel on terms similar to
those channels.
The ALJ’s Tennis Channel
ruling raises serious
First Amendment problems.
Hopefully, the full Federal
Communications Commission
will take First Amendment principles
seriously and reverse the ALJ’s
ruling on appeal.
Section 616 prevents multichannel
video programming distributors
from preferring affiliated video
programming over non-affiliated
programming if it “unreasonably
restrain[s] the ability of an unaffiliated
video programming vendor to
compete fairly.” Whatever the FCC’s
obligations under Section 616, its
actions must still be consistent with
the First Amendment. This includes
the Constitution’s general prohibition
of government censorship of
speech based on content.
The ALJ’s Tennis Channel ruling
is especially problematic because it
is unmistakably content-based. The
ALJ analyzed and compared the respective
programming of the Tennis
Channel with the Golf Channel
and Versus. This included the extent
of overlap between the respective
channels in terms of programming
genres, target audiences, advertisers,
and ratings. Deeming the Tennis
Channel “similarly situated,” the
ALJ concluded unfair discrimination
against Tennis Channel resulted
from certain business and editorial
decisions made by Comcast, such as
channel and tier placement.
As a remedy, the ALJ’s ruling “requires
Comcast to carry Tennis Channel
at the same level of distribution that
it carries the Golf Channel and Versus.
Comcast Cable otherwise has full
discretion in determining the level it
chooses to carry the three channels.” It
also requires Comcast “to provide Tennis
Channel with equitable treatment
(vis-à-vis the Golf Channel and Versus)
as to channel placement.”
In so doing, the ALJ
tried to brush aside concerns
about rights of editorial
discretion. The ALJ
asserted Comcast could
still choose not to carry
any of those three channels — but if
it did choose to carry either of its affiliated channels then it would have
to carry the Tennis Channel on similar
terms. This attempted workaround
won’t work at all if First Amendment
requirements are taken seriously.
The conditional nature of the ALJ
order’s remedy also undermines any
claim that restrictions on Comcast’s
editorial discretion are justified by its
promotion of diversity and competition
in the video programming market.
How could the ALJ’s order be said
to promote programming diversity if
Comcast drops the Tennis Channel
along with its affiliated channels?
Lastly, it’s worth considering that
the entire program-carriage regulatory
framework stands on shaky
ground: 1990s analog-era cable regulations
were upheld from First
Amendment challenge on the basis
of a perceived local cable “bottleneck.”
But the days when cable
providers enjoyed a 90% market
share are long gone.
If the commissioners take free
speech protections seriously, they
should reverse the ALJ’s ruling.
Seth L. Cooper is a research fellow at
the Free State Foundation.
