Founded in 2003, Tennis Channel Inc. provides 24-hour programming that’s all about the sport, from live matches and instructional videos to features on the greats of the game.
Comcast Cable Communications LLC, the country’s largest provider of cable television, apparently isn’t a big fan of the channel — restricting its distribution to a sports and entertainment package that requires subscribers to pay an extra monthly fee. Lawyers for Comcast say the company’s lack of interest in broader distribution stems from an objective cost-benefit analysis: Subscribers just haven’t shown a lot of enthusiasm. But that’s not what the Federal Communications Commission determined, and now the sides are taking the dispute to a federal appeals court in Washington in a test of federal power to intrude on editorial discretion.
Last year, the FCC, in a divided ruling, said Comcast put its business interests — sports channels it owns — first in intentionally discriminating against the Tennis Channel and ordered the cable provider to boost its carriage of the channel — a ruling that marked the first ever in the 20-year history of the underlying provision of the federal Communications Act.
Arguing that the FCC has violated Comcast’s speech rights, Comcast’s lawyers at Gibson, Dunn & Crutcher want the U.S. Court of Appeals for the D.C. Circuit to set aside the decision. A three-judge panel will hear the case on February 25.
"Under core First Amendment principles, this case does not even present a close question," Gibson partner Miguel Estrada, co-chairman of the firm’s appellate and constitutional law practice, said in a brief. Estrada, who will argue for Comcast, didn’t return messages seeking comment. A team from the U.S. Justice Depart­ment and the FCC general counsel’s office are defending the commission’s action, which also included a $375,000 fine. In court papers, the government’s legal team, which includes Peter Karanjia, the FCC deputy general counsel, said Comcast "substantially impeded" the Tennis Channel’s ability to compete for programming. That, in turn, hurt the ability of the network to sell advertising.
Comcast, according to the government, "engaged in a pattern of favoring its affiliates" — the Golf Channel and Versus, now known as the NBC Sports Network. Comcast is the controlling owner of those two networks, which enjoy wider distribution than the Tennis Channel, represented by Covington & Burling.Washington’s Holch & Erickson, on behalf of amicus Bloomberg L.P., is backing the FCC in the fight. (Bloomberg competes directly with financial news channel CNBC, which Comcast owns.) On the other side, Farr & Taranto, representing the National Cable & Telecom­munications Association, filed a friend-of-the-court brief in support of Comcast.
"Under the First Amendment, government regulation of speech is the exception, not the rule," H. Bartow Farr III said in the association’s brief. "To justify overriding cable operators’ carriage decisions, therefore, the government at a minimum must demonstrate — not just claim — that its interference with private speech serves an important governmental interest."
Tennis Channel’s attorneys at Cov­ington, including Robert Long Jr., who leads the firm’s appellate and U.S. Supreme Court litigation group, and senior counsel Stephen Weiswasser, said the FCC was well within its authority in its effort to promote competition and diversity.
"The FCC found that Comcast discriminates against The Tennis Channel and in favor of sports channels that it owns such as the Golf Channel and NBC Sports," Long, who will argue for the Tennis Channel, said in an e-mail. "Comcast is arguing that it has a legal right to engage in such discrimination, even though both Congress and the FCC have concluded that it harms competition and diversity. "The Tennis Channel airs on 130 video programming distributors. Comcast, with 23 million subscribers, is the largest distributor in the country. The Golf Channel and Versus are available to Comcast subscribers on the company’s expanded basic and digital tiers, giving those sports networks a wider audience. Lawyers for the Tennis Channel contend that’s unfair, and in early 2010 they filed a complaint with the FCC that alleged Comcast is unlawfully protecting its affiliate sports networks.
The commission, pointing to "significant circumstantial evidence," concluded that Comcast was discriminating against the Tennis Channel. The evidence included statements from senior executives at Comcast that programming affiliates enjoy a "different level of scrutiny" from the cable provider.
‘A MODEST FEE’
In the D.C. Circuit, Comcast’s lawyers, including Estrada and Gibson Dunn litigation partner Cynthia Richman, call the FCC decision an "unconstitutional, content-based regulation of speech." The commission’s order "imposes nakedly content-based restrictions," the attorneys said, that require Comcast to distribute the Tennis Channel more broadly.
Comcast "makes Tennis Channel available to nearly all of its subscribers — they need only pay a modest fee to access it," Estrada said in court papers. That fee, FCC records show, is $5 to $8 a month.
The FCC order "is not a market regulation that levels the playing field and burdens protected speech en passant," Comcast’s lawyers said.
"It is just the opposite: a deliberate intrusion on private speech that makes the field uneven by elevating one speaker over another."
Mike Scarcella can be contacted at firstname.lastname@example.org.