FCC Administrative Law Judge Richard Sippel has ruled in favor of the Tennis Channel in its program carriage complaint against Comcast. The decision marks the first time that a cable operator has been found to violate the program carriage anti-discrimination rules that the Federal Communications Commission (FCC) put into place in 1993. Concluding that Comcast had engaged in a “serious violation of law” by “discriminat[ing] against Tennis Channel in favor of Golf Channel and Versus in terms and conditions of their distribution,” FCC Chief Administrative Law Judge (ALJ)Â Sippel issued a 54-page ruling on Tuesday, December 20 that orders Comcast to discontinue its practice of discriminating against Tennis Channel in favor of its wholly owned, competing sports networks Golf Channel and Versus (which will be renamed NBC Sports Network on Jan. 2, 2012) and, in the public interest, to forfeit the maximum penalty of $375,000 to the government.
The FCC’s ALJ Order directs Comcast to “proceed as soon as practicable with remediation.”
Sippel stated: “It is concluded that Tennis Channel has satisfied its burden of proving that Comcast Cable engaged in discrimination in the selection, terms or conditions of carriage on the basis of its non-affiliation with Tennis channel.”
“This is a long-awaited day for Tennis Channel, and a watershed moment for independent programming networks and viewers who benefit from a true diversity of voices in the American media marketplace,” said Ken Solomon, chairman and CEO, Tennis Channel, in a statement. “Our request has been simple and clear since the beginning: we just want to be treated the same way major operators treat the networks they own that compete with us. From there we’re prepared to succeed or fail based on a level playing field.”
Sena Fitzmaurice, the vice president of government communications for Comcast Corp., noted that that the decision is still subject to review and that it will take its case to an appeals court if necessary.
“We respectfully disagree with the initial decision that was released today in the FCC case involving Tennis Channel,” said Fitzmaurice.
“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. 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 issued today 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. We believe it is wrong for Tennis Channel to use the government to impose higher costs and prices on private enterprise and consumers and we look forward to the review process.”
After Comcast rejected Tennis Channel’s ongoing efforts to persuade Comcast to carry it fairly, Tennis Channel filed a complaint with the FCC on Jan. 5, 2010. The complaint alleged that Comcast violated Section 616 of the Communications Act and the FCC’s program carriage rules by discriminating against the independent programmer in favor of its wholly owned and competing Golf Channel and Versus networks. On Oct. 5, 2010, the FCC Media Bureau found that Tennis Channel had made a prima facie showing of Comcast’s discrimination, issued an order for a hearing before Chief ALJ Sippel and directed that the ALJ’s decision would “become effective upon [its] release.” The two parties’ eight-day hearing began April 25, 2011. On July 8, 2011, the FCC Enforcement Bureau filed comments recommending that the ALJ find against Comcast, require Comcast to pay the maximum monetary forfeiture to the government and make immediate changes to correct the discrimination in the terms and conditions of Tennis Channel’s carriage.