Enforcement Bureau, Tennis Channel, Oppose Comcast Stay Request in Carriage Dispute
The FCC should not stay an initial decision by an administrative law judge ordering Comcast to carry the Tennis Channel on the same tier as its Golf network, the FCC Enforcement Bureau said in a filing. Comcast sought a stay last month (CD Jan 27 p6), but the Enforcement Bureau said there’s no merit to Comcast’s claims that requiring carriage would violate its constitutional rights. Pointing to previous FCC decisions and the congressional record, the bureau said: “If anything is to be drawn from their collective voice, it is that where a cable carrier has been found to have engaged in affiliation-based discrimination, the public interest manifestly requires an immediate remedy.” A Comcast spokeswoman declined to comment.
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There’s also no merit to Comcast’s claims that a stay would avoid confusion and frustrating viewers, the bureau said. “Even assuming, in arguendo, Comcast’s viewers were inconvenienced, any such difficultly would be temporary at best,” it said. “Any short-term disruption Comcast viewers might experience is outweighed by the long-term benefits they would enjoy from the diversity in programming” that would result from implementing the initial decision, it said.
The Tennis Channel also attacked Comcast’s stay petition and application for review, in filings submitted to the commission this week. Nothing in the Administrative Procedure Act prevents the initial decision from becoming effective immediately, the Tennis Channel said in response to Comcast’s stay request. Furthermore, Comcast’s First Amendment claims don’t hold water, the Tennis Channel said. Comcast “has already made an editorial judgment that it wants to carry tennis content -- so much so, in fact, that it seeks tennis programming for Versus,” the Tennis Channel said. “The only interest at stake here -- Comcast’s financial interest in charging a discriminatory and unjustified fee to subscribers who wish to receive Tennis Channel -- is not an interest that is protected by the First Amendment.
Moreover, Comcast hasn’t shown it would suffer irreparable harm without a stay, the Tennis Channel said. That “stands in stark contrast to the ongoing harm that Tennis Channel will suffer if Comcast can continue to discriminate while it seeks review of every aspect of the Initial Decision,” the Tennis Channel said.