The Tennis Channel has lost its bid for a review of a pivotal court decision in its marathon legal match against cable giant Comcast Corp.
On Wednesday, the District of Columbia Circuit Court of Appeals denied the Tennis Channel's petition that asked the full panel of judges to hear its case accusing Comcast of anti-competitive behavior.
In May, Comcast won a unanimous court victory when three members of the U.S. Court of Appeals for the D.C. circuit ruled that the Tennis Channel had failed to prove that Comcast was guilty of discrimination by placing the Tennis Channel in a higher-priced sports tier with fewer subscribers.
That decision reversed a finding last year by the Federal Communications Commission that Comcast had illegally put the tiny Santa Monica sports channel at a competitive disadvantage. The FCC's ruling marked the first time the regulatory agency had found a cable operator in violation of federal anti-discrimination rules.
Hours after the May ruling, which landed during the French Open tennis tournament, Tennis Channel Chief Executive Ken Solomon fired off an angry email to his staff members from a Paris hotel room at 4 a.m. In the email, Solomon described the judicial panel as a "Mad Hatter of a court" and "three Lone Ranger judges."
The Tennis Channel has been lobbying unsuccessfully for more than three years to be included in Comcast's basic service that feeds more than 21 million homes. That package already includes two Comcast-owned sports channels — the Golf Channel and NBC Sports Network. Comcast currently offers the Tennis Channel in a tier that has only about 3 million subscribers.
Besides potentially increasing its audience, being fully distributed on Comcast would also boost the distribution fees the Tennis Channel would collect from the nation's largest cable operator.
[Update: Sept. 4, 8:07 p.m. The Tennis Channel released a statement late Wednesday expressing disappointment in the ruling: "The U.S. Circuit Court decision today effectively strips the FCC of the ability to perform the role Congress requires. Tennis Channel takes very seriously Congress’ goal of a fair, open marketplace where diverse, independent voices are afforded the opportunity to compete on a level playing field based on their own merit. Many in the industry have recognized that if Comcast owned Tennis Channel instead of Golf Channel, the tables would be turned. We are disappointed with this result and intend to pursue further review.”]
Comcast, for its part, applauded the ruling.
"The D.C. Circuit Court of Appeals found 3-0 that Comcast did not discriminate against the Tennis Channel. We are gratified the full court agreed with the panel's decision," Sena Fitzmaurice, a vice president of Comcast Corp., said in a statement.
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