The FCC should take up the Tennis Channel’s...

further proceedings filed Tuesday. The U.S. Court of Appeals for the D.C. Circuit ruled in Comcast’s favor in May (CD May 29 p1) because it said the commission had not shown discrimination by providing evidence that carrying the Tennis Channel on a more basic tier would benefit Comcast, Tennis Channel said. Tennis Channel asked the Supreme Court to overturn the decision, but wasn’t granted cert (CD Feb 25 p15). The existing record in the proceeding contains “ample evidence” to satisfy what Tennis Channel characterized as the court’s “new tests,” the channel said. The evidence “demonstrates that Comcast’s distribution business would reap a net benefit from carrying Tennis Channel broadly” or at least that any losses from carrying Tennis Channel on a wider tier “would be smaller than those it was incurring from broad carriage of Golf Channel.” The evidence also shows that Comcast’s justifications for keeping Tennis Channel on a more selective tier were “merely pretexts designed to obscure a discriminatory purpose,” Tennis Channel said. The FCC should set a new briefing cycle and direct Comcast and Tennis Channel to “file limited proposed findings of fact and conclusions of law on the narrow issues” the D.C. Circuit said weren’t backed by the evidence, said Tennis Channel. Those briefings are needed because in the prior proceedings “neither the parties nor the Commission had an opportunity to evaluate the record evidence against the tests that have now been articulated by the court,” said the petition. After the proceeding, the FCC should affirm its original decision that Comcast violated discrimination rules and require Comcast to carry Tennis Channel on the same tier as Golf Channel and Versus.