Comcast Wins, FCC Loses in Tennis Channel Case

Appeals court says commission violated MSO's right to configure its lineup

A federal appeals court has handed Comcast Corp. another win in the cable giant's case against the Federal Communications Commission's ruling that Comcast discriminated against the Tennis Channel.

In a 51-page decision released Tuesday, the U.S. Court of Appeals for the District of Columbia ruled unanimously that the FCC "has not provided evidence that Comcast discriminated against Tennis on the basis of affiliation."

Comcast all along argued that the FCC did not have the authority to override its distribution agreement with the Tennis Channel and force Comcast to move the Tennis Channel to a more widely distributed tier on the cable lineup. At the time that the FCC made the controversial ruling in a 3-2 vote along party lines, it was considered a victory for independent cable networks. But the victory turned out to be short-lived when Comcast challenged the FCC's decision and was granted a stay last August against the FCC's decision. 

Judge Brett Kavanaugh, who concurred with the decision, wrote that he believed the FCC violated the First Amendment in trying to tell Comcast how it must configure its cable lineup. "The FCC 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," wrote Kavanaugh.

Pleased with the decision, Comcast pointed out that the FCC's unprecedented decision in favor of the Tennis Channel would have reversed the distribution contract struck between the cable company and sports network. "Tennis Channel received exactly the carriage it bargained for and agreed to. Comcast's decision to carry Tennis Channel was the product of legitimate business considerations, not affiliation. As Comcast maintained from the start, those facts did not and could not support the finding of discrimination necessary to sustain a program carriage violation," Comcast spokeswoman Sena Fitzmaurice said in a statement.

Disagreeing with the decision, Tennis Channel said in a statement that it intended to seek further review, though it's unclear what it can do short of lobbying Congress to change the law. In the Tennis Channel's view, the FCC has the authority to make sure independent channels aren't trampled by the likes of big cable companies like Comcast. "We believe that it is the obligation of the FCC to act in the public interest to ensure a diverse marketplace of voices, as mandated by Congress when it introduced the Cable Act," read the statement.