Enforcement Bureau Recommends That FCC Make Comcast Begin Carrying the Tennis Channel
The FCC should grant a petition by the Tennis Channel forcing Comcast to carry it under the terms of an initial decision (ID) by an administrative law judge, the Enforcement Bureau said in comments filed in response to their channel’s petition. “Carriage in the manner specified in the ID should commence immediately,” it said. But Comcast said forcing carriage now before it had exhausted its appeals would violate the Administrative Procedure Act and the Constitution. Both sides found support for their position in the language of the initial decision.
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The decision contains specific language “directing compliance ‘as soon as practicable,'” the Enforcement Bureau said. And Section 76.1302(j) of the FCC’s rules “unambiguously provides remedial orders in program carriage adjudications shall be effective ‘upon release,’ in cases such as that presented here, in which deletion of programming is apparently not required,” it said.
Comcast pointed to the last footnote in the ALJ’s decision -- footnote 361 -- which says the ID would only become effective “50 days after release if exceptions are not filed within 30 days thereafter, unless the Commission elects to review the case of its own motion.” Comcast has filed timely exceptions, pointing out the decision’s many legal and factual flaws, it said. The Enforcement Bureau also acknowledged footnote 361 but said Section 76.1302(j) overrides it. “To the extent footnote 361 of the ID suggests a different result from that mandated by Section 76.1302(j), the footnote should be disregarded, and the requirements of Section 76.1302(j) should govern the effective date of the subject ID,” it said.
Beyond violating the APA, forcing immediate compliance with the ID would also violate Comcast’s due process rights under the Constitution, it said. “The due process violation of … forcing Comcast to comply with an order before proof is heard of a threshold and complete defense would be particularly egregious given the ‘unprecedented nature of the Initial Decision (Tennis Channel’s own characterization),” Comcast said.
The FCC should stay the initial decision’s effectiveness, Comcast said in a conditional petition for stay filed with the agency. Requiring immediate carriage will “impose significant, immediate and irreversible costs and burdens on Comcast” its customers and other networks, Comcast said. It would also infringe Comcast’s First Amendment rights “as its ability to speak through its own networks will be conditioned on broader distribution of Tennis Channel,” it said.
The stay should remain in place through “any and all review, including if the Commission affirms the Initial Decision, review by the courts,” Comcast said. “At a minimum, however, the APA requires the Commission to stay the Initial Decision pending the exhaustion of Comcast’s administrative remedies.”