The Tennis Channel, represented by attorneys from Covington & Burling, has won a case against Comcast, marking the first time an independent programming network has won a discrimination case against a cable or satellite company.
The ruling, handed down Tuesday by Federal Communications Commission Chief Administrative Law Judge Richard Sippel, opens the door to future court challenges to claims of discrimination.
Stephen Weiswasser, a Covington partner who worked the case, said that independent channels are hesitant to challenge the will of the networks because of the time and financial cost associated with fighting a court battle. He said that Covington had been working on this for two years leading up to the eight-day bench trial.
“It is good for the program industry and ultimately the public because it will almost certainly make it easier for similarly situated programmers who are being discriminated against to litigate for their rights,” Weiswasser said. “Diversity in ownership produces diversity in content.”
Covington attorneys showed how Comcast favored its wholly owned sports networks Golf Channel and Versus by assigning the Tennis Channel a listing further away from other sports channels. Comcast was ordered to remedy the listing and pay a $375,000 penalty to the government. Once remedied, this will dramatically increase the availability of Tennis Channel to subscribers.
Weiswasser worked alongside Covington partners William Phillips and Paul Schmidt and associates Robert Sherman, Leah Pogoriler and Neema Trivedi.
Weiswasser said the FCC is considering rule changes that would clarify the burden of proof to argue discrimination, a change he supports.
“The best thing the commission can do is clarify the rules and speed up the decision making process,” he said.