The U.S. Court of Appeals in DC just shot down the FCC’s ruling last year that would have required Comcast to take Tennis Channel off of an extra-fee sports tier so it could compete more equally with the cable giant’s Golf Channel and NBC Sports Network. The FCC said last year that Comcast had used its market power to discriminate against Tennis Channel. But the Appeals Court says 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. When Comcast put the channel on a sports tier “not one customer complained about the change,” the court notes. Indeed the justices say that the FCC had no evidence to demonstrate that broader distribution of Tennis Channel “offered Comcast any commercial benefit.” Comcast says that Tennis Channel agreed to be on a sports tier when it negotiated its carriage agreement in 2005. “Tennis Channel received exactly the carriage it bargained for and agreed to,” says Comcast VP Government Communications Sena Fitzmaurice. “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.” Tennis Channel says that it’s “disappointed” with today’s ruling. “Comcast’s clear pattern of discrimination against Tennis Channel in favor of the competing networks that it owns — as detailed at length by the FCC — warrants further review of the panel’s decision and we intend to seek that review,” it says.
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