Former FCC Media Bureau Chief Supports Sky Angel Arguments to Remain in Federal Court
Sky Angel has tapped former FCC Media Bureau Chief Monica Desai to help it keep its case in federal court, where it alleged C-SPAN broke antitrust rules. Sky Angel, which has a still-pending program access complaint against Discovery that prompted the FCC’s Media Bureau last year to ask how it should define the terms “multichannel video programming distributor” (MVPD), sued C-SPAN in U.S. District Court, Washington, D.C., alleging Sherman Act violations over C-SPAN’s refusal to distribute its networks with Sky Angel. C-SPAN subsequently asked the court to dismiss the claim (CD Jan 15 p7), saying the matter ought to be heard first by the FCC.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
C-SPAN is confident Sky Angel’s attempts to “contort a simple breach of contract claim into a federal antitrust case will fall flat,” said Bruce Collins, corporate vice president and general counsel. “Sky Angel’s latest filing makes clear that there is no coherent legal theory underlying its complaint and no facts to back up any of its illusory claims,” he said.
Responding to the motion to dismiss, Sky Angel on Tuesday argued that C-SPAN, with its lack of attributable ownership by a cable operator, is essentially untouchable under the FCC’s program access rules. Sky Angel can’t bring a program access claim against C-SPAN to the FCC under Section 628 of the Communications Act for three reasons, Sky Angel said. First, the competitive problems Sky Angel’s claims raised are different than those addressed by Section 628, it said. And because C-SPAN is not a cable operator, it can’t be implicated under Section 628(b) which lays out certain cable operator obligations, it said. And finally, the FCC has no jurisdiction to settle alleged Sherman Act violations “even if the FCC were completely sympathetic to Plaintiff’s position,” it said.
C-SPAN is not subject to any program access statute or rule, Desai’s declaration said. “Even if the Commission agreed with every allegation of anticompetitive conduct raised by Sky Angel … the Commission could not trigger the program access safeguards to protect Sky Angel,” it said.
Moreover, there’s no connection between the Media Bureau’s current inquiry into whether Sky Angel qualifies as an MVPD and the company’s antitrust claims against C-SPAN, Desai’s declaration said. Regardless of Sky Angel’s status under the FCC rules, C-SPAN is not subject to the program access rules because no cable operator has an attributable interest in it, Desai’s declaration said. Moreover, the allegations Sky Angel has raised, involving anticompetitive conduct and conspiracy to maintain a monopoly, are governed by the Sherman Act and are not an area where the commission has particular expertise, the declaration said.
Furthermore, resolving Sky Angel’s claims in court won’t conflict with other FCC regulations, Sky Angel said. “C-SPAN’s anticompetitive conduct may very well also violate some provisions of the Communications Act or some Commission regulation administered by the FCC … but that is not the violation before this court,” it said.