Tennis Channel filed a cert petition asking the...

federal discrimination law to invent an arbitrary and unfair standard for deciding cable carriage complaints,” said Tennis Channel in a news release. “The D.C. Circuit Court of Appeals has spoken emphatically and unanimously that Comcast did not discriminate against the Tennis Channel,” said a Comcast spokeswoman in an email. “We are confident that this ruling will continue to be upheld.” The D.C. Circuit ruled that the FCC -- which had decided in favor of the Tennis Channel complaint and was the defendant in the D.C. Circuit case -- had failed to show that Comcast unlawfully discriminated against the channel, and said the defendants hadn’t presented evidence to refute Comcast’s contention that the decision not to offer Tennis Channel on a sports tier wasn’t based on financial analysis (CD May 29 p1). Tennis Channel had sought an en banc review of the D.C. Circuit decision, but that request was denied in September. The ruling “misstated and misapplied” discrimination law, and “fundamentally changed” the future standard for discrimination cases, said Covington & Burling attorney Stephen Weiswasser, who represents Tennis Channel, in an interview. “Congress expressly charged the FCC with the responsibility to establish procedures and decide carriage discrimination complaints,” said the Tennis Channel release. “The court’s decision not only failed to recognize where that responsibility lies, but also rewrote a vital portion of Congress’ 1992 Cable Act and federal discrimination law.” Weiswasser said the cert petition also points to cases in the jurisdiction of the 2nd U.S. Circuit Court of Appeals where a different discrimination standard was applied, and argues that this means there is a split between the two circuits. A circuit split would make it more likely for the Supreme Court to get involved, said Fletcher Heald appellate attorney Harry Cole, who isn’t involved with the case. Both Cole and Weiswasser said the odds are long for any one case to be granted cert by the high court. “We think we have an important legal principle involving federal discrimination law and an important point of competition,” said Weiswasser. “But it’s always hard to know what’s going to happen.”