Comcast Prevails in Program Carriage Dispute at FCC

August 17, 2018

This is the third case in two years in which Willkie obtained a favorable result for Comcast in a program carriage dispute at this initial pleading stage.

Willkie represented Comcast in a dispute with beIN Sports over the carriage of the beIN Sports networks at the Federal Communications Commission. This is the third case in the past two years in which Willkie obtained a favorable result for Comcast in a program carriage dispute at this initial pleading stage.

In March 2018, beIN Sports filed a program carriage complaint at the FCC claiming that Comcast discriminated on the basis of affiliation against beIN Sports’ networks to favor its allegedly similarly situated networks, NBC Sports Network (“NBCSN”) and Universo, based on Comcast’s initial renewal carriage proposal.

Pursuant to the FCC rules, Comcast filed an extensive answer in May 2018 rebutting beIN’s claims with written fact and expert testimony, as well as other evidence. Comcast argued that beIN’s networks are not similarly situated to NBCSN and Universo, that beIN’s claims were premature because predicated on an early stage proposal with significant uncertainty as to the programming on the beIN networks, and that Comcast exercised its reasonable business judgment in formulating its initial proposal and rejecting beIN’s non-market proposals.

In an August 2018 decision, the FCC sided with Comcast, rejecting beIN Sports’ argument that the FCC should find that beIN has met its prima facie burden of showing unlawful discrimination and designate the case for further proceedings. The FCC found that beIN Sports “failed to provide evidence sufficient to support its claim that the programming it would provide under the renewal agreement is similarly situated to the video programming provided by Comcast’s affiliated vendors, NBCSN and Universo.” The FCC specifically pointed to “significant uncertainty about what programming would be provided by beIN Sports in a renewal agreement” and found that, for this reason, “we have no basis for finding that Comcast’s proposed terms and conditions for carriage of that programming were discriminatory within the meaning of the Commission’s rules.” Accordingly, the FCC dismissed the case without prejudice.

The Willkie team included partners Michael Hurwitz and David Murray, and associates Melanie Medina, Brenna Sparks, Sam Eckland, and Kenley Joseph.