The Tennis Channel and the FCC appear to have their backs against the wall in the network’s discrimination case against cable giant Comcast.
Last year, the FCC ordered Comcast to provide equal treatment to Tennis Channel in its tier placement, ruling that it must be on the same tier as the two sports networks it owns, the Golf Channel and NBC Sports.
But on Monday, judges on U.S. Court of Appeals for the D.C. Circuit panel expressed concern about whether the Tennis Channel's complaint was issued on time, and whether the FCC’s order affected its First Amendment rights.
A variety of outlets reported that Senior Judge Harry Edwards appeared ready to strike the FCC order on the grounds that the Tennis Channel’s discrimination complaint was filed outside the one-year FCC complaint window.
One of the judges said that it was “ludicrous” for the FCC to suggest that a complaint could be filed anytime somebody wanted.
Tennis Channel argues that if such a time limit were placed on complaints, then companies such as Comcast could wait for a year after a contract is signed and then discriminate against them as much as they like.
Comcast counters that being told where to place Tennis Channel is an invasion of its First Amendment rights because it is being ordered what to do editorially, and that it has a constitutional right to favor its own speech over others, so long as it does not do so for anti-competitive reasons.
There is no timetable set for the judges ruling, but a decision is expected in a few months.
The stakes are high: Tennis Channel has said that if it were move to the same basic tier that Golf Channel and NBC Sports are on, the network would be available in an additional 20 million homes, which could mean about $3 million per year in revenue. Tennis Channel is currently available in about 34 million homes nationwide.