FCC Delay in Sky Angel Program Access Complaint Not ‘So Egregious,’ Court Says
A federal appeals court denied a petition for a writ of mandamus that would have forced the FCC to act on a pending program access complaint by Sky Angel against Discovery Communications. Sky Angel, which now does business as FAVE TV (Family and Values Entertainment), sells a package of linear pay-TV programming delivered over the Internet to proprietary set-top boxes. It complained to the commission in March 2010 that Discovery improperly withdrew its programming networks from Sky Angel’s service in violation of program access rules. Sky Angel sought the mandamus petition earlier this year to force the commission to act on the complaint.
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A three judge panel of the U.S. Appeals Court for the D.C. Circuit denied Sky Angel’s petition Thursday. “The agency’s delay is not yet so egregious or unreasonable as to warrant the extraordinary remedy of mandamus,” an order released by the court said. Judges David Tatel, Merrick Garland and Janice Rogers Brown denied the petition without prejudice to “renewal in the event of significant delay."
Denying the petition without prejudice was a “clear indication to the FCC that the court will keep an eye on the situation and remains an open remedy to us if there is a significant delay,” said Charles Naftalin. The attorney with Holland & Knight represents Sky Angel. Spokeswomen for the Media Bureau, handling the program access complaint, and for Discovery declined to comment.
Naftalin said the commission should resolve the program access complaint before resolving the questions it raised in a public notice earlier this year about how the commission should define the terms “channel” and “multichannel video programming distributor” (CD April 2 p9). Much of what the bureau asked in that notice “is not relevant to what Sky Angel has established before the commission as a matter of fact,” he said. “It should reach a decision” about the program access complaint, he said. “A year from now, that decision won’t be any easier to make.”