Tennis Channel aces Comcast on tiering dispute


Independent sports service Tennis Channel has been battling cable giant Comcast for some time over its placement of TC on its systems. While Comcast’s own similar channels were made widely accessible to viewers, TC said its location on a specialty sports tier carrying an additional subscriber fee was discriminatory, and an FCC administrative law judge agreed.

The two key Comcast properties that sparked the pro-Tennis Channel decision were the Golf Channel and Versus. They all predominantly feature sports programming, attract a predominantly affluent male audience and compete for many of the same advertisers, and in the case of Versus, they compete for the rights to broadcast some of the same sporting events.

Here’s the scoop from the case summary: “…Comcast Cable’s unequal treatment of Tennis Channel vis-à-vis its sports affiliates has adversely affected the ability of Tennis Channel to compete fairly in the video programming marketplace. Through its discriminatory actions as described herein, Comcast Cable has depressed the number of Tennis Channel’s subscribers, diminished the amount of its license fees, reduced its ability to procure valuable programming rights, and made it more difficult for Tennis Channel to sell advertising.”

Chief Administrative Law Judge Richard L. Sippel said that Comcast is liable for a punitive fine of $375K. The company also has to treat Tennis Channel carriage as it does Golf Channel and Versus.

The issue moves to the FCC 8th Floor for final action.

Tennis Channel naturally was elated with the decision. “This is a long-awaited day for Tennis Channel, and a watershed moment for independent programming networks and viewers who benefit from a true diversity of voices in the American media marketplace,” said Ken Solomon, chairman and CEO. “Our request has been simple and clear since the beginning: we just want to be treated the same way major operators treat the networks they own that compete with us. From there we’re prepared to succeed or fail based on a level playing field.”

Comcast naturally did not like the decision, believes that the ALJ got it wrong, and intends to keep fighting it.

RBR-TVBR observation: We’re not taking sides in this, but it would cause us to wish for guidance if we were running an MVPD. Should a regulatory body issue a similarity chart of all program services so we would know what goes with what?

The answer, we believe, is that the government has no business determining where basic cable channels are situated on the channel card, much less which channels are even carried.

On the other hand, it is a fact that vertical integration has given many companies both a distribution platform and a slate of program channels, thereby creating an environment ripe for discrimination.

We think that the rising costs associated with many of the channels, along with the increasing complexities trying to referee disputes between companies, are factors that will continue to move support among in Washington for mandating a la carte program options for subscribers.

Comcast and Tennis Channel both think they are right in this dispute – maybe instead of letting an ALJ determine the answer, consumers operating in a tier-free pick-and-choose environment can make a true market-based decision.

Make no mistake, we aren’t advocating this – it just seems like that’s where the issue may be headed, whether stakeholders like it or not.