UPDATE, 2:40 PM: Comcast’s Sena Fitzmaurice just responded to the Tennis Channel’s petition, urging the FCC to reject it as “baseless litigation” that “simply reiterates arguments that the court of appeals and the Supreme Court have already rejected.” In 2005 the companies “negotiated and signed an arm’s length contract” that Comcast has fulfilled “in exactly the way the contract requires.” The DC Court of Appeals agreed that Tennis Channel’s plea to be carried as a basic service would have “immense costs and no benefits for Comcast and that, therefore, Comcast’s carriage decision was appropriate and non-discriminatory. When given the opportunity to pursue the case at the Supreme Court, the government’s own lawyers chose not to do so.”
PREVIOUS, 12:55 PM: Tennis Channel has lost a game and a set in its discrimination cases against Comcast, but it still believes that it can win the match if the FCC agrees with a new petition asking it to review the matter again. The filing follows a U.S. Supreme Court decision last month not to review an appeals court decision that vacated a 2012 FCC order. The regulators agreed that Comcast had discriminated against Tennis Channel by putting it on an extra-fee sports tier while putting similar channels that it owns — Golf Channel and NBC Sports Network — on the expanded basic tier. The appeals court concluded that the FCC offered no evidence to refute Comcast’s position that it made a simple financial judgment that few subscribers wanted to watch tennis. Tennis Channel says that the FCC now can return to the case because “there is considerable evidence in the record that satisfies the new tests” the appeals court used to vacate the FCC’s order. If regulators look again, they “will once again conclude that Tennis Channel is correct in its view that Comcast has illegally discriminated against it.”
Comcast probably would like to see this matter go away while it asks the FCC and Justice Department to approve its $45.2B planned acquisition of Time Warner Cable. Last week the cable company didn’t mention the Tennis Channel complaint when it summarized the steps it has taken to fulfill commitments it made in 2011 to secure government approval of its acquisition of NBCUniversal.