A federal appeals court in Washington on Tuesday sided with Comcast in a dispute with federal regulators over the cable company’s refusal to more widely distribute The Tennis Channel.
The U.S. Court of Appeals for the D.C. Circuit rejected the Federal Communications Commission’s declaration that Comcast Cable Communications LLC discriminated against The Tennis Channel by limiting its distribution to a sports package that requires subscribers to pay an additional monthly fee of $5 to $8.
Comcast-affiliated Golf Channel and Versus, now the NBC Sports Network, are included in a separate package that receives broader national distribution than does The Tennis Channel. An administrative law judge determined Comcast was playing favorites and ordered it to give equal treatment to The Tennis Channel.
The D.C. Circuit overruled a divided FCC in a matter that marked the first of its kind in the 20-year history of the underlying provision of federal communication law. The FCC also fined Comcast $375,000.
"Without showing any benefit for Comcast from incurring the additional fees for assigning Tennis a more advantageous tier, the Commission has not provided evidence that Comcast discriminated against Tennis on the basis of affiliation," Senior Judge Stephen Williams wrote for the unanimous three-judge panel.
Gibson, Dunn & Crutcher’s Miguel Estrada, who argued for Comcast before the appellate court, could not immediately be reached for comment. He is co-chairman of Gibson’s appellate and constitutional law practice.
Comcast said in a formal statement that the company’s carriage decision for The Tennis Channel, which was launched in 2003, was "the product of legitimate business considerations, not affiliation." The cable provider said The Tennis Channel "received exactly the carriage it bargained for."
Estrada argued in a brief filed with the D.C. Circuit that "under core First Amendment principles, this case does not even present a close question." Estrada and Gibson litigation partner Cynthia Richman called the underlying FCC decision an "unconstitutional, content-based regulation of speech."
Covington & Burling partner Robert Long, who leads the firm’s appellate and Supreme Court litigation practice, argued for The Tennis Channel in the D.C. Circuit. He declined to comment about the ruling. The Tennis Channel said it would press on with its legal fight.
"As a small, independent company defending ourselves against one of the world’s largest media conglomerates, we would love for this long process to be justly resolved and behind us," the channel said in a prepared statement. "However, Comcast’s clear pattern of discrimination against Tennis Channel in favor of the competing networks that it owns—as detailed at length by the FCC—warrants further review of the panel’s decision and we intend to seek that review.”
D.C. Circuit Judge Williams heard the case with Senior Judge Harry Edwards and Judge Brett Kavanaugh. Writing separately, Edwards said The Tennis Channel’s legal challenge was filed too late. Kavanaugh said in his concurring opinion the FCC “badly” misread the law.
The FCC, Kavanaugh wrote, "cannot tell Comcast how to exercise its editorial discretion about what networks to carry any more than the government can tell Amazon or Politics and Prose or Barnes & Noble what books to sell; or tell the Wall Street Journal or Politico or the Drudge Report what columns to carry; or tell the MLB Network or ESPN or CBS what games to show; or tell SCOTUSblog or How Appealing or The Volokh Conspiracy what legal briefs to feature."
The spat attracted the attention of Bloomberg L.P., represented by Washington’s Holch & Erickson, which filed a friend-of-the-court brief in support of the FCC. Farr & Taranto represented the National Cable & Telecommunications Association in an amicus brief that supported Comcast’s position.
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