Timing of DC Circuit Ruling on Tennis Channel/FCC Ruling Unclear

The FCC brief argued Tennis Channel has had plenty of opportunity to submit evidence and make its case that Comcast discriminated against it -- a claim originally upheld by the FCC in 2012, then denied the following year by the D.C. Circuit and denied by the FCC earlier this year (see 1501280059). The programmer later petitioned the FCC for further proceedings. Tennis Channel's argument that the D.C. Circuit ruling set up new evidentiary tests for determining whether the FCC's legal standards for program carriage claims were being followed is wrong "on several levels," the agency said. That court ruling just gave examples of types of proof that a video programming vendor could cite to show that a multichannel video programming distributor's decision was based on affiliation instead of "any reasonable business justification," the FCC said. "Tellingly, even after the Court issued its decision, Tennis Channel offered ... no hint of what additional evidence it believes it could produce that it did not already present earlier in the proceeding," the FCC said. The time for putting forth any evidence was during the proceeding before the administrative law judge, the FCC said. "A party is not entitled to present only a partial case and seek a decision from the Commission (and review by this Court) while reserving the right to put on additional evidence later if its initial showing is found insufficient," the agency said. Giving Tennis Channel another shot at prosecuting its claim "would unduly tax the agency's scarce administrative resources," the FCC said.

Comcast's intervenor brief echoed many of the FCC's arguments that the D.C. Circuit ruling didn't set up new evidentiary rules but instead said Tennis Channel failed to prove its claim, so the court shouldn't remand the case to the FCC. "For everything, there is a season," Comcast said. "But Tennis Cannel had its time to litigate, and it lost."

The FCC's order denying the carriage discrimination complaint "rests on a fundamental misreading" of the appellate court decision, Tennis Channel said in its brief, saying the court's ruling "did not displace the FCC's proper role as fact finder and conclusively resolve the newly identified factual issues against Tennis Channel." Instead, the programmer said, the court ruling indicated it had to demonstrate at least one of three facts: that Comcast's distribution business could expect some net benefit from carrying Tennis Channel broadly, that Comcast's distribution business would see smaller losses from carrying Tennis Channel broadly than from carrying similar but affiliated programming, or that Comcast's business reasons for restricting Tennis Channel distribution were pretextual. The D.C. Circuit decision made clear the FCC hadn't looked at any of those three, Tennis Channel said. To argue the court had looked at the entire record and conclusively determined there was no evidence of Comcast discrimination would mean the court had "ignored basic administrative law principles," Tennis Channel said. And the programmer said it "is not asking for a 'second opportunity' to litigate issues that the FCC has already adjudicated," since the FCC hasn't disputed that it hasn't looked into issues in the court's three questions.