Comcast Slams ALJ Recommendation Against it in Tennis Channel Case
Comcast criticized an FCC staff decision and an administrative law judge, who each ruled against the cable operator in its programming dispute with an independent channel. The full commission should overturn the 2010 Media Bureau order that sent the Tennis Channel’s program carriage complaint to the ALJ in the first place, Comcast said. And it asked the commission to find differently than a December order which said the cable operator violated program carriage rules.
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Chief FCC ALJ Richard Sippel’s recommendation that the commission vote to require Comcast to carry the channel as widely as two sports networks owned by the cable operator violates the First Amendment and doesn’t stick to Section 616 of the Communications Act, the defendant said. Its exceptions to Sippel’s December ruling (CD Dec 28 p2) were posted Friday in docket 10-204 (http://xrl.us/bmpdey). The channel said the filings provide no good reason for the agency to abandon what Sippel sought.
The bureau should have dismissed the channel’s complaint because it was filed after a one-year statute of limitations on such grievances, Comcast said. Not throwing out the complaint on such grounds would let programmers game the process by making a case at any time during the length of a distribution contract, not just within a year of the deal being struck, the company said. The contract was signed in 2005, and the complaint was filed four years later, of which “there is no dispute” among parties in the case, Comcast said.
The hearing designation order “improperly reads the third element of the limitations rule in a way that renders the first prong functionally meaningless by allowing parties to ‘reset’ the limitations period at any time merely by unilaterally demanding a material change to the terms of an existing agreement and delivering a notice of its intent to file a complaint if its demand is not met,” Comcast said. The first prong of the three, the triggering of any one of which begins the one-year deadline, is a pay-TV provider and programmer entering a carriage deal. The third prong is a programmer telling an operator it intends to file a complaint based on a rule violation. In “the Bureau’s reading, a party can use the third prong of the limitations rule to re-open carriage agreements at any time, undermining the ability of the counter-party to rely on a contract,” Comcast said.
Its free-speech rights were violated by Sippel’s recommendation because he compared Comcast’s Golf Channel and NBC Sports Network (called Versus at the time the complaint was made) to the Tennis Channel, the cable operator said in its exceptions to the ruling. The judge also “effectively rewrites” Section 616 to find the plaintiff was injured because it would be seen in more cable subscribers’ homes if Comcast carried it more widely, the operator said. “But that reasoning would apply to any complaint challenging the denial of wider carriage, rendering the unreasonable-restraint prong superfluous.” The Tennis Channel is on Comcast’s sports tier, which can be bought by almost any subscriber to the operator’s video service, the defendant said.
Comcast’s filings shouldn’t prompt the commission to vote against the Tennis Channel, the indie said. They “provide no basis for reversing the comprehensive decision of the” ALJ, a spokesman said. “We'll file our opposition in due course. Our view prevailed at the hearing, the law is clear and we think that the commission will act based upon it.” Once an ALJ issues a recommendation, typically the bureau drafts an order acting on it, which must be approved by commissioners.
Sippel determined the content was similar and so Comcast discriminated against the indie because the company didn’t own it. “The Initial Decision relies heavily on an explicit comparison of the content of those networks’ programming,” Comcast said. “It considers in detail, for example, which sporting events are shown on which networks, examines the tone set by specific programs (finding Versus did not actually ‘portray aggression'), and asserts that a hypothetical viewer of Tennis Channel -- ‘a sports channel specializing in tennis-related programming -- views the network for its sports content.'”