Bureau Asks ALJ to Recommend That FCC Make Comcast Widely Distribute Tennis Channel

There’s “substantial evidence” Comcast has previously decided how to carry Tennis by consulting with executives of the Golf and Versus channels it owns, the bureau said. “Tennis Channel points out that when Comcast polled its division chiefs to determine if there was significant interest in distributing Tennis Channel more broadly, Comcast’s corporate culture influenced the answers,” the filing said. “Tennis Channel successfully undermines Comcast’s argument that there was a lack of interest from the divisions in distributing Tennis Channel more broadly.” The FCC’s order approving the cable operator’s buy of control in NBCUniversal “noted similar evidence that Comcast favors its wholly-owned affiliates,” the bureau said. It sought the commission’s maximum penalty because any less “would be unlikely to deter a company as large as Comcast from future violations of our rules in its future cable carriage decisions."

It’s the first time the bureau sided recently with a complainant in a program carriage case. The commission dismissed last month a complaint by WealthTV against Comcast and three other cable operators, after the bureau asked the ALJ to find against that independent network and Sippel did so in 2009. ALJs often hew to what the bureau recommends (CD Aug 13/09 p9). Gary Oshinsky of the bureau was skeptical at a spring hearing in Tennis Channel v. Comcast of how Comcast consultant Michael Egan suggested the plaintiff had less popular programming than Golf and Versus (CD April 29 p7). The bureau called Egan’s comments “subjective testimony” and said he didn’t “refute the compelling quantitative evidence presented by Tennis.” Bureau Chief Michele Ellison and Oshinsky were among the filing’s signers. Tennis and Comcast representatives had no comment.

The bureau said Sippel should ask the regulator to require Tennis be carried on Comcast’s systems nationwide on a “broadly distributed tier,” within 30 days of the FCC’s decision and at a price and terms similar to what the operator gives to Golf and Versus. “The evidence shows” the three networks are “closely aligned” on programming, ads, ratings and viewer demographics, the bureau said. “Despite differences in the type of sports televised, Tennis Channel also established that sports programming occupies a distinct portion of advertisers’ spending budgets and that all three channels compete for the same pool of advertising dollars.” Sippel should ask the commission to require Comcast carry the plaintiff in channel slots close to those occupied by Golf and Versus, except where limited bandwidth on analog systems would require kicking another network off, the bureau said.

Comcast should be required to “end its discrimination in terms of channel placement” of the plaintiff and either be required to carry Golf, Versus and Tennis in proximate positions or create a sports neighborhood of channel slots to include the three networks, the bureau said. A carriage proposal the plaintiff made to the cable operator in 2009, which Comcast turned down, could have “an appropriate price schedule” for such broad distribution, the recommendation stated. Such carriage would cost Comcast many millions of dollars, an executive of that operator testified during the ALJ hearing. That Comcast puts Golf and Versus in slots between 7-20 while Tennis goes in the 700 range is “undisputed evidence” of discrimination of channel assignments, which the Comcast/NBCUniversal order said is an indication of such behavior, the bureau wrote: “DirecTV, Dish and Verizon FiOS carry” Golf, Tennis and Versus in the same neighborhood of sports programming.