Sky Angel Sues C-SPAN over Antitrust Allegations
Sky Angel alleged that C-SPAN has illegally withheld its programming from the online video distributor, in an antitrust complaint filed Tuesday. The suit, filed in the U.S. District Court, Washington, D.C., marks the latest attempt of Sky Angel to litigate whether it has rights to programming controlled by incumbent pay-TV distributors. Sky Angel, which sells a package of family-friendly programming under the FaveTV brand to subscribers who use a set-top box to obtain the programming over the Internet, lost a bid this summer to force the FCC to weigh in on a similar question (CD July 17 p7). It wanted a federal appeals court to compel the commission to act on a pending program access complaint against Discovery Communications, but the court gave the agency more time.
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Now the company is taking a new approach with antitrust litigation. “The FCC had every opportunity to work things out and has clearly decided not to involve itself,” Jonathan Rubin, Sky Angel’s antitrust counsel said: “Public policy is all well and good, but what happens when a private party’s rights have been trampled on? That’s what we're focused on now.” C-SPAN declined to comment.
C-SPAN has been in the sights of online video distributors before. In 2006, Virtual Digital Cable planned to file an FCC complaint against the network, which is a project of the cable industry and whose board is made up of many top industry executives, but never followed through.
Now Sky Angel is targeting the public affairs channel because of its board and its programming, Rubin said. “The existence of C-SPAN as a joint venture of the cable industry is fine as long as they stick to serving the public interest,” he said. “When they turn C-SPAN as a means of keeping new rivals out of the market, then there’s an antitrust problem."
C-SPAN’s programming is important for a new MVPD to carry because all other MVPDs have it, Rubin said. Without it, it puts Sky Angel into a “what’s the matter with these guys?” class, Rubin said. “It’s an imprimatur of acceptance into the club of legitimate, ready for prime time cable operators, which we believe we are,” he said. “We don’t have to say it’s essential. It’s enough to say that not having access to it raises our costs and raises barriers to entry into the field.”