tenniscourtGuest Commentary

by John Andren, Washington Legal Foundation*

The U.S. Court of Appeals for the D.C. Circuit released its eagerly awaited decision in Comcast Cable Communications v. FCC last week. Although the decision was unanimous, all three judges on the panel had something to say on the matter.

The case concerned whether or not Comcast violated section 616 of the Communications Act of 1934 by refusing to provide the same carriage for the Tennis Channel, which Comcast has no ownership in, as it does for the Golf Channel and Versus (now NBC Sports Network), both of which Comcast has ownership in. The FCC and Tennis Channel accused Comcast of “unreasonably restraining” Tennis Channel from competing fairly with Comcast’s own proprietary sports networks, while Comcast contended their decision to not offer Tennis Channel more broadly was based on nothing more than “a straight up financial analysis.”

The court’s opinion was authored by Senior Circuit Judge Stephen F. Williams, while Circuit Judge Brett M. Kavanaugh and Senior Circuit Judge Harry T. Edwards each filed concurring opinions.

Judge Williams’ opinion was the shortest of the three and refused to directly address the First Amendment and statute of limitation claims argued in Comcast’s brief. Instead, Judge Williams found it convincing enough that neither Tennis Channel nor FCC could provide any evidence of any financial benefit to Comcast should they distribute Tennis Channel on a more widely available programming tier (Comcast currently distributes Tennis Channel on their “Sports Tier” which is available to subscribers only for an additional cost). The court then agreed with Comcast that its decision to restrict Tennis Channel’s carriage as compared to Golf Channel and Versus was simply a business decision—DirecTV and Dish Network, which both have shares in Tennis Channel similarly carry Golf Channel and Versus more broadly—and not a nefarious plot to squash unaffiliated “competition.”