C-SPAN Asks Court to Toss Sky Angel Complaint
C-SPAN asked a federal court to dismiss antitrust allegations raised by Sky Angel, an online video distributor. Sky Angel sued C-SPAN In U.S. District Court, Washington, D.C. (CD Nov 14 p15), saying the cable network, a service of the major cable operators, refused to license its programming to Sky Angel’s Internet video service.
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In its motion to dismiss, C-SPAN argued the FCC has sole jurisdiction over Sky Angel’s claims and the court can’t resolve the suit without intruding on the FCC’s domain. Beyond the jurisdictional problems, Sky Angel’s complaint failed “to plead any of the elements of an antitrust claim” or “allege an actual antitrust injury,” which further compel the court to dismiss, the motion said.
The suit marks another chapter in Sky Angel’s dispute with the FCC over whether it, as an online video distributor, is entitled to program access rights under the Communications Act, said C-SPAN General Counsel and Corporate Vice President Bruce Collins. “They are attempting to get into federal court by dressing their program access complaint as an antitrust violation,” he said: “The Communications Act and ample case law clearly prohibit Sky Angel’s attempt to make such an end-run around the FCC’s exclusive jurisdiction over program access issues."
The FCC has yet to rule on a separate program access complaint Sky Angel brought against Discovery Communications in 2010. The U.S. Court of Appeals for the D.C. Circuit in July denied Sky Angel’s petition to force the commission to act on that complaint (CD July 16 p7). “Sky Angel’s allegations against C-SPAN are virtually identical to its allegations against Discovery,” C-SPAN said in its motion to dismiss. Matters pending before the FCC are not reviewable by any court, C-SPAN said. “This holds true even if the matters do not include all the same parties and claims” if the plaintiff is seeking substantially the same relief on the same issues, it said.
Sky Angel can file a separate FCC complaint to stand beside its complaint against Discovery, C-SPAN said. “But in any case, it [Sky Angel] must await the FCC’s decision on its proper regulatory classification, and then upon its entitlement to relief,” before seeking judicial review, it said.
The FCC has behaved in a way “that is completely consistent with their declining to exercise jurisdiction,” said Jonathan Rubin, Sky Angel’s counsel. “The fact that they might be thinking about it is all well and good, but they're not doing anything.” C-SPAN’s argument is like saying “that there can’t be antitrust jurisdiction, because there is a government agency that might some day in the future exercise jurisdiction over this,” he said.
Sky Angel’s complaint rests on “speculation” that C-SPAN terminated its carriage agreement with Sky Angel because C-SPAN’s board is made up of mostly cable industry executives, C-SPAN said. “That speculation is the beginning and end of Sky Angel’s factual basis for its claims, and it is insufficient to survive a motion to dismiss.” Sky Angel didn’t immediately respond to our query.