In a 3-2 party-line split decision, the FCC declared that the principal difference between Golf Channel, Versus and Tennis Channel is that Comcast owns and gives preferential channel placement to the first two services, in affirming the opinion of an administrative law judge who heard the dispute.
The end result is that Comcast must give Tennis Channel carriage equal to its own similarly-situated channes, and it must pay a $375K forfeiture to the US Treasury.
Republican Commissioners Robert McDowell and Ajit Pai attached a co-authored dissenting opinion to the decision.
The gist of the dispute was Comcast’s placement of independently-owned Tennis Channel on a special sports tier which subscribers must pay extra to get and for that reason has significantly fewer viewers.
Meanwhile, two similar sports-oriented channels in which Comcast has an interest – Golf and Versus – as situated on a much-more widely distributed expanded basic tier.
The lengthy release on the case went beyond the immediate dispute and stated that there is circumstantial evidence that this is standard operating procedure for Comcast.
It said the cable giant was restricting Tennis Channel’s ability to compete; on the flip side, it said that ordering that treating Tennis in a fashion similar to Golf and Versus was not an infringement of Comcast’s First Amendment rights, but rather respect for Congress’s intent to prevent possible abuse of vertical integration power of companies such as Comcast with both programming and distribution interests.
McDowell and Pai issued a four-page rebuttal of the FCC decision, and summed up their argument thusly: “In our view, the Commission’s analysis founders on this simple fact: Comcast’s treatment of Tennis Channel was within the industry mainstream. In 2010, the year in which Tennis Channel filed its complaint, every major MVPD in the United States distributed both Golf Channel and Versus to more subscribers than Tennis Channel. Or, to put it another way, not a single major MVPD found Tennis Channel to be ‘similarly situated’ to Golf Channel and Versus when making carriage decisions.”