Tennis Channel's FCC Petition 'Impermissible Attack' on Court Ruling, Comcast Says
Tennis Channel's view of the law would mean countless FCC cases would go on forever because courts would never be able to conclude that the record shows that the party with the burden of proof has failed to meet that…
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burden, Comcast said in a brief filed Thursday in U.S. Court of Appeals for the D.C. Circuit. The network is trying to reopen its discrimination complaint against the cable company (see 1510220019). Tennis Channel's original 2010 carriage complaint against Comcast was supported by the FCC, but then vacated by the D.C. Circuit in 2013. After Tennis Channel re-petitioned the commission, the agency in January issued an order denying both the original complaint and the re-petition, and Tennis Channel in response petitioned the D.C. Circuit to vacate that order and remand the case. In its filing, Comcast called Tennis Channel's argument "an impermissible attack" on the 2013 ruling and said FCC was right when it decided that ruling was a rejection of Tennis Channel's discrimination claim and it precluded any FCC revisiting of the merits of that claim. Tennis Channel's argument that the D.C. Circuit decision didn't resolve the merits of the claim and only set up new standards "is a naked assault on the Court's opinion" as it was applying the FCC's existing interpretation of Section 616 of the Communications Act, Comcast said. The 2013 court decision conclusively held there was not enough evidence in the record to support the discrimination claim, and that ruling clearly "did not contemplate a do-over before the agency" -- especially because there was no language in the ruling saying the case was remanded to the FCC, Comcast said. The court can't review the FCC refusal to reopen the case since Tennis Channel hasn't shown any new evidence or circumstances, Comcast said. But it said even if it did, Tennis Channel hasn't shown the FCC abused its discretion. Tennis Channel didn't comment.