Will Rehearing Prove That Comcast Bullied Tennis Channel?

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The Tennis Channel has petitioned the full U.S. Court of Appeals for the District of Columbia in an attempt to reverse a May ruling by judges in its dispute with Comcast (NASDAQ:CMCSA).

The sports cable network had alleged that Comcast had discriminated against it by not offering the Tennis Channel to all its subscribers as it does for the majority of the sports networks it owns. Specifically, the channel was placed in a less desirable tier than other channels such as the Golf Channel. In May, however, judges ruled that the Tennis Channel had not proved its allegations.

The ruling overturned the conclusions of the Federal Communications Commission, which found that Comcast needed put the Tennis Channel on equal footing with the Golf Channel and the NBC Sports Network. While the FCC decided that Comcast had violated program carriage provisions of the Cable Act, the panel of three judges said that the FCC had “failed to identify adequate evidence of unlawful discrimination.”

However, the Tennis Channel didn’t agree with the conclusions by the three-judge panel and filed a request for a rehearing on Friday.

“By requiring evidence that the defendant suffered an economic loss, the panel departed from this Court’s prior anti-discrimination decisions, ignored congressional intent, and erroneously rejected extensive findings made by the Federal Communications Commission,” the Tennis Channel wrote in its request.

As the dispute continues, it is likely that members of the cable business will study the outcome closely. While there have been other cable carriage disputes, none of them have gone as far as this one has. The Tennis Channel alleges that Comcast’s refusal to put the network into a less expensive, more broadly distributed cable tier is for economic purposes.

And the FCC agreed with their theory. “The FCC found that Comcast in fact made no effort to analyze the benefits its distribution business could obtain from Tennis Channel’s proposal for broader carriage,” the Tennis channel said in its 75-page brief.

A Comcast spokesman explained that “a unanimous panel of the U.S. Court of Appeals emphatically rejected Tennis Channel’s complaint in a well-considered opinion. We continue to treat Tennis Channel fairly, making it available to those customers who want it in full accordance with our contract.” According to Comcast, the Tennis Channel “received exactly the carriage it bargained for and agreed to.”

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