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July 25, 2012
WASHINGTON, DC, July 25, 2012 — The Federal Communications Commission handed a decisive victory to the Tennis Channel yesterday in its discriminatory carriage lawsuit against Comcast Cable Communications, the largest distributor of video programming content.
Covington & Burling secured the victory against the largest content distributor in the nation. The decision follows an eight-day trial and marks the first time an independent cable network has prevailed under Section 616 of the Communications Act of 1934 since the statute was passed two decades ago.
“The landmark decision is a substantial victory for small, independent networks like Tennis Channel,” said Stephen Weiswasser, a lead Covington attorney on the case. “For over two years, Tennis Channel battled against the nation’s largest content distributor, while continuing to operate with artificially-constrained distribution.”
The FCC held that Comcast discriminated against Tennis Channel in favor of its wholly-owned networks, Golf Channel and Versus (now re-named the NBC Sports Network), in violation of Section 616. The FCC ordered Comcast to carry Tennis Channel “on the same distribution tier, reaching the same number of subscribers, as it does Golf Channel and Versus.” The Commission’s carriage remedy will expand Tennis Channel’s carriage nearly six-fold, extending the network’s reach to virtually the entirety of Comcast’s national footprint. Comcast is required to comply within 45 days and must pay the maximum statutory penalty of $375,000.
In affirming the decision of the FCC’s chief administrative law judge last December, the FCC rejected each of Comcast’s arguments for its discriminatory treatment of Tennis Channel as “unpersuasive.”
The FCC held that with equal carriage, “Tennis Channel would be able to compete against Golf Channel and Versus on equal footing for content, advertisers, and viewers.”
The Covington team was led by Stephen Weiswasser, William Phillips and Paul Schmidt. The team includes associates Leah Pogoriler and Neema Trivedi and former associate Robert Sherman.