A federal appeals court in Washington Monday appeared poised to strike down a Federal Communications Commission decision that found the country’s largest cable TV provider discriminated against the Tennis Channel by restricting its distribution to a sports package.
A lawyer for the FCC, Peter Karanjia, faced tough questions from a panel of the U.S. Court of Appeals for the D.C. Circuit, where Comcast Cable Communications is fighting the FCC order. The agency ruling was the first-ever in two decades under a provision of federal communications law that Congress enacted to promote competition and diversity in cable television programming.
Judges expressed concern about whether the Tennis Channel’s complaint is time-barred and whether the agency order could expand the government’s power to regulate the speech of other entities. One judge, Brett Kavanaugh, said the FCC "has a serious problem with the First Amendment here."
The appeals court didn’t immediately rule in the case. Bloomberg L.P. filed papers in support of the FCC. The National Cable & Telecommunications Association wants the FCC order vacated. A team from Gibson, Dunn & Crutcher represents Comcast.
The FCC order, issued by a divided commission in 2012, said Comcast must provide equal treatment to the Tennis Channel as the cable provider gives to two affiliated sports networks, the Golf Channel and Versus, which is now NBC Sports. The FCC also fined Comcast $375,000.
The Tennis Channel, represented by Covington & Burling in the appeal, has no ownership affiliation with Comcast, which contends its distribution decision stems from a cost-benefit assessment. Karanjia noted in court that the commission decision requires the same level of distribution for the three networks but Comcast has discretion to determine how it chooses to carry those channels.