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Tennis Channel wins Comcast case

LOS ANGELES — Independent programming network Tennis Channel has won its carriage complaint hearing against Comcast Cable Communications. 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) Richard L. Sippel issued a 54-page ruling 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 (set to 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.”

Noting that Comcast’s violations arose out of its “corporate policy of … favoring its affiliates vis-à-vis unaffiliated entities,” Chief ALJ Sippel ordered Comcast to provide Tennis Channel with the “same treatment in both terms and conditions that it gives to its and similarly situated Golf Channel and Versus.” This requires Comcast to carry Tennis Channel at the same level of distribution that it provides to these networks, with a limited exception for certain analog systems. As part of the FCC’s Order that Comcast treat Tennis Channel similarly to its Golf Channel and Versus, the ALJ ordered the operator to provide Tennis Channel with channel lineup placement equivalent to what it affords these networks (commonly referred to in the industry as “neighborhooding”).

“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. “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.”

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.

Tennis Channel was represented by Covington & Burling LLP. Tennis Channel (www.tennischannel.com) is the only 24-hour, television-based multimedia destination dedicated to both the professional sport and tennis lifestyle. A hybrid of comprehensive sports, health, fitness, pop culture, entertainment, lifestyle and travel programming, the network is home to every aspect of the wide-ranging, worldwide tennis community. It also has the most concentrated single-sport coverage in television, with telecast rights to the US Open, Wimbledon, Roland Garros (French Open), Australian Open, Olympus US Open Series, ATP World Tour Masters 1000 events, top-tier WTA competitions, Davis Cup and Fed Cup by BNP Paribas, and Hyundai Hopman Cup.

 

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