SBD/May 29, 2013/Media

Appeals Court Rules In Favor Of Comcast In Ongoing Tennis Channel Carriage Suit

Tennis Channel and the FCC could ask for an en banc review of the decision
The DC Circuit Court of Appeals yesterday ruled Comcast "does not need to place the Tennis Channel in the same cable subscription tier as its own sports networks," according to Brendan Sasso of The ruling "strikes down" a '12 FCC decision that tried to "force Comcast to place the Tennis Channel in the same bundle of channels" as Golf Channel and NBC Sports Network, channels Comcast owns. The FCC had ruled against Comcast in a 3-2 vote, but the appeal court concluded unanimously that the agency "failed to identify adequate evidence of unlawful discrimination." Judge Stephen Williams noted that, according to Comcast, "no customer had ever complained that the Tennis Channel should be in a more affordable tier." The court's opinion did "not address Comcast's controversial claim that the FCC action violated its free-speech rights." But Judge Brett Kavanaugh "endorsed Comcast's First Amendment argument in his concurring opinion" (, 5/28). BROADCASTING & CABLE's John Eggerton noted cable operators are "allowed to discriminate in carriage so long as it is not for anticompetitive reasons." Comcast had been "carrying Tennis Channel on a sports tier, which costs extra, when in 2009 Tennis sought wider carriage and offered analysis of how much it would cost Comcast for the extra carriage." Tennis Channel or the FCC -- but "likely both together -- have 45 days to ask for a full (en banc) review by the DC appeals court of the three-judge panel" (, 5/28).

NET BANKING ON BOOST OF SUBSCRIBERS: In L.A., Meg James notes Tennis Channel, which "turns a profit, had been banking on a big boost in subscribers, which would have generated tens of millions of dollars more through higher ratings and new subscriber fees." The channel had planned to "use the money to strengthen its programming roster," and it had hoped that a "wider distribution and larger audience would make it easier for Tennis Channel investors to sell the channel eventually." SNL Kagan analyst Derek Baine said, "This move, getting into more Comcast homes, was going to move the Tennis Channel up to the next level, but it is tough to get traction when you are an independent channel. ... This could be absolutely devastating financially to the Tennis Channel." Tennis Channel Chair & CEO Ken Solomon said, "We are thriving as a channel and we are going to survive this. We've never been treated fairly by Comcast in the 10 years that we've been in existence, but this is not over." Tennis Channel said that it would "consider an appeal to the U.S. Supreme Court" (L.A. TIMES, 5/29).
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Media, Comcast, Tennis Channel

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