FCC Record, Volume 27, No. 11, Pages 8850 to 9847, July 30 - August 17, 2012 Page: 9,275
x, 8850-9847 p. ; 28 cm.View a full description of this book.
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Comcast's own affiliated (and competing) networks - Golf Channel and Versus.4 Since Comcast began
carrying Tennis Channel in 2005, the network has been placed on a premium Sports Tier on the vast
majority of the nearly 700 cable systems operated by Comcast.s To access this tier, subscribers must pay
an additional monthly charge above what they pay for basic digital cable service. Under its carriage
agreement with Tennis Channel, Comcast may determine the tiers on which it will carry Tennis Channel.
Golf Channel and Versus, Comcast-affiliated networks that Tennis Channel viewed as similarly situated,
generally are offered on channel tiers that are available to all digital subscribers at no additional cost and
reach significantly more of Comcast's customers than the channel tier on which Comcast's systems carry
the Tennis Channel. In 2009, Tennis Channel, pointing to recent viewership growth and programming
improvements, asked Comcast to increase its distribution by repositioning it to a tier that had broader
penetration than the Sports Tier. Comcast rejected Tennis Channel's proposal.
3. On October 5, 2010, the Media Bureau released an order designating Tennis Channel's
complaint for a hearing before an administrative law judge.6 The Media Bureau rejected Comcast's
arguments that Tennis Channel's complaint was barred by an FCC rule specifying the applicable statute
of limitations for program carriage disputes. The Media Bureau also concluded that Tennis Channel had
established a primafacie case of program carriage discrimination pursuant to Section 616(a)(3) of the
Communications Act and Section 76.1301(c) of the Commission's rules.7 The AU was directed by the
Media Bureau to "develop a full and complete record in the instant hearing proceeding and to conduct a
de novo examination of all relevant evidence in order to make an Initial Decision on each of the
outstanding factual and legal issues" and to do so on an expedited basis.'
4. The ALJ issued his Initial Decision on December 16, 2011. The ALJ concluded that
Tennis Channel, Golf Channel, and Versus are similarly situated networks.9 The ALJ found it undisputed
that Comcast gave Golf Channel and Versus far more favorable channel placement and broader carriage
than Tennis Channel, noting that a senior Comcast executive had acknowledged that affiliated networks
"get treated like siblings as opposed to like strangers" and receive a "different level of scrutiny" than
unaffiliated providers. The ALJ further noted that "[e]very one of [Comcast's] affiliated networks is
carried on more widely distributed tiers than the Sports tiers," while it carries "only unaffiliated sports
networks exclusively on the narrowly penetrated Sports Tier."" The ALJ rejected Comcast's arguments
that its differential treatment of the three networks could be explained by factors other than impermissible
discrimination on the basis of Tennis Channel's unaffiliated status.
5. The ALJ concluded that Comcast benefits economically by favoring affiliated networks
over unaffiliated networks and that Comcast's unequal treatment of Tennis Channel adversely affected
4The Tennis Channel, Inc., Program Carriage Complaint File No. CSR-8258-P, at 2 3, filed by Tennis Channel
(Jan. 5, 2010) ("Complain't").
i According to one industry source, Comcast currently operates 676 cable systems. See Warren Communications
News, Inc., Television & Cable Factbook 2012, Vol. 80, Cable Vol. 2, at D-1488.
6 Tennis Channel, Inc. v. Comcast Cable Commc 'ns, LLC, 25 FCC Rcd 14149 (MB 2010) ("HDO").
7Id. 9.
SId. 23.
9 Initial Decision, 26 FCC Rcd at 17170 24.
'o Id. 53-55.
" Id. 579275
Federal Communications Commission
DA 12-1311
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United States. Federal Communications Commission. FCC Record, Volume 27, No. 11, Pages 8850 to 9847, July 30 - August 17, 2012, book, August 2012; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc133015/m1/442/: accessed April 19, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.