Two weeks ago, a federal appeals court ruled that Comcast did not have to put Tennis Channel on its basic cable service and could, instead, throw it on a more-expensive sports tier. The court overturned an FCC ruling in the process. Tennis Channel was unhappy about this. In fact, Tennis Channel CEO Ken Solomon was so unhappy that he wrote a furious email to staff in which he references, among other things, the Lone Ranger, Tonto, Ray Charles, the "Scarlett [sic] letter," the Mad Hatter, Alice, and the experience of "being raped for a decade by a brutal captor."
A tipster forwarded us the email ("CONFIDENTIAL…FOR YOUR EYES ONY [sic]"). If it reads a little unhinged, I can think of two reasons why: 1.) The stakes are high for Tennis Channel. The New York Post reports that Comcast's basic cable package serves about 20 million viewers, while its sports tier reaches only three million. The Post also reports that Tennis Channel is up for sale, and if this decision holds, it's going to "sink" the channel's value. As we saw last week at the French Open, Tennis Channel has pretty essential programming. 2.) It is completely unhinged.
Solomon wrote the email a day after the court's ruling came down. He was in Paris at the time, just another American writing 4 a.m. prose in the City of Light. The email starts off slowly and then picks up some momentum, churning through metaphors and similes in an effort to convey what a "travesty of justice" this ruling was, how "wholly wrong and unfair, and just plain hard to believe" it was. "Unholy," too:
Unrelated to our journey for justice, these three Lone Ranger judges walked into the court with a mission… looking for one thing, to teach the FCC a lesson; already decided. Ideology. Then there’s Tonto- Comcast, who spends more than Exxon and Boeing in DC on lobbyists and god knows what else. They bought this unholy decision, one way or another.
And what else?
And finally, of all things to say there is not sufficient evidence of discrimination? Even Ray Charles could see the shameful way they treat those they do not own. Conjuring this impossible justification…that there isn’t sufficient evidence to support this and every other painful and brutal discrimination complaint is like looking at a building engulfed in flames and asking “what fire” ??? It’s like being raped for a decade by a brutal captor, finally winning in a long and painful public court trial (while you can’t get work because of your Scarlett Letter), and then on appeal years later from a pre-decided Mad Hatter of a court asking you, the victim, to produce a video to prove that it ever happened. Forget the scars, bruises and painful clarity with which everyone knows that your story is simply 100% true, where is your proof dear Alice???
A Tennis Channel rep declined to comment. Here's the whole email:
From: K E N S O L O M O N
Sent: Wednesday, May 29, 2013 04:06 AM
To: K E N S O L O M O N
Subject: A few thoughts....
FOR IMMEDIATE RELEASE
May 28, 2013
TENNIS CHANNEL STATEMENT REGARDING U.S. CIRCUIT COURT DECISION
“While Tennis Channel appreciates the time and consideration that the Circuit Court has given to this important FCC Order, we’re disappointed with today’s decision and respectfully disagree. Based on the merits of this particular case, we believe that it is the obligation of the FCC to act in the public interest to ensure a diverse marketplace of voices, as mandated by Congress when it introduced the Cable Act. As a small, independent company defending ourselves against one of the world’s largest media conglomerates, we would love for this long process to be justly resolved and behind us. However, Comcast’s clear pattern of discrimination against Tennis Channel in favor of the competing networks that it owns – as detailed at length by the FCC – warrants further review of the panel’s decision and we intend to seek that review.”
CONFIDENTIAL…FOR YOUR EYES ONY
Our business is thriving. We lost nothing yesterday except another round. Remember that we have never had the benefit of those 20 million extra subs, and yet youhave defied the odds in building a truly superior Indy network to any other in our class none-the-less. This battle is not existential for us, we will continue to grow while we seek our just cause further. We will continue to gain broader distribution from non-competitive distributors. It is still I admit, hugely disappointing. This decision is simply unfair to subscribers, fans, advertisers, players, rights holders, investors, the game, independent voices everywhere and our company as well as all companies to not afford Tennis Channel the one thing this country is supposed to promise all, a level playing field in order to compete fairly, no different than the game we love and support. It is all we have ever asked for. This win, when we get it will be the cherry on the Sunday (maybe with a little icing too.)
This latest decision is, however, truly a travesty of justice, wholly wrong and unfair, and just plain hard to believe.
We have fought for the game (of tennis), our patient investors, and most of all the American people, played by all the rules, spent millions we don’t have defending ourselves and won every time there was a fair court. TC is still a very small US business, building for numerous stakeholders benefit, with impossibly patient independent investors filling a gaping need where 95% of the sport just wasn’t televised before we existed. They have invested and waited for over a decade for fair treatment, after earning it with a service both superior in terms of quality and quantity of rights (2000 live hours), announce team and supporting programming, half the price of inferior verticalized direct competitors…all with 2 arms and a leg tied behind our backs due to restricted distribution compared to owned counterparts.
Unrelated to our journey for justice, these three Lone Ranger judges walked into the court with a mission… looking for one thing, to teach the FCC a lesson; already decided. Ideology. Then there’s Tonto- Comcast, who spends more than Exxon and Boeing in DC on lobbyists and god knows what else. They bought this unholy decision, one way or another. The nonsensical arguments Comcast’s 3 law firms made for the years this issue was reviewed by the FCC and the ALJ were revealed tobe transparent justifications of the systemic discrimination they continue to practice without restriction, never tested in 20 years. The judges arguments are no less cogent…statute of limitations? Really? Do they mean that on the 366th day a distributor can discriminate as much as they like against un-owned services with full impunity? Is THAT your interpretation of the law Justice Edwards? Market power? Did Congress not mean that such matters should be decided on a case-by-case basis by the FCC when that is precisely what they wrote in section 616? They could have said sufficient market power on a global basis, and that the DOJ decide based on antitrust, but they specifically didn’t…. because it would never have worked, justice Williams. And finally, of all things to say there is not sufficient evidence of discrimination? Even Ray Charles could see the shameful way they treat those they do not own. Conjuring this impossible justification…that there isn’t sufficient evidence to support this and every other painful and brutal discrimination complaint is like looking at a building engulfed in flames and asking “what fire” ??? It’s like being raped for a decade by a brutal captor, finally winning in a long and painful public court trial (while you can’t get work because of your Scarlett Letter), and then on appeal years later from a pre-decided Mad Hatter of a court asking you, the victim, to produce a video to prove that it ever happened. Forget the scars, bruises and painful clarity with which everyone knows that your story is simply 100% true, where is your proof dear Alice???
The FCC was tireless and complete, and ALJ saw proof beyond any question of the wholesale and often sloppy discrimination that is the very business plan of the Comcast distribution machine… the brutal, unyielding and often capricious cycle of discrimination that any and all distributors are put through before they are put to death. That is no exaggeration. READ IT!. Better still, just look around…who would dare develop a new need service today unless owned by a distributor, much less fund one? If we lose, then it is truly game over for one and all independent voices across all platforms in this country.
And should you doubt this, remember to ask yourself one simple question when Goliath Comcast foists these endless and disparate false defenses…
”Where would Tennis Channel be distributed on Comcast systems if they owned us?” Would we really be in just 4 million of their 23 million homes as it is today, at $5.00 extra per month per home to see Tennis Channel, or all 23 million homes for FREE to all, just like Golf Channel and NBS Sports Network/Versus? “and if they didn’t own them, where would Golf Channel, and NBCS be placed?”
Who is the guardian on the people and free voices in this country? Who will insure that entrepreneurism, new ideas and much needed independent content businesses can still be developed and brought to the fore in the land of the superintegratedmega verticals. Not congress, not the courts. If this review were to hold, the FCC will no longer have meaningful jurisdiction over the cable business anymore and section 616….the congressional act protecting against the inherent discrimination that same congress knowingly created in allowing GOVERNMENT LICENSED distributors/utilities to own content will be DEAD, there will NEVER be another challenge, and never have been a single successful one since the law was written.
We are still just part way through this marathon, much as we’d like to be at the finish line already. We must prevail, and make no mistake, we shall.
Thanks…and let’s keep killing them in Paris and all year long!
PS- “sorry to get off on a rant there, that’s just my opinion, I could be wrong – Dennis Miller”
Daniel Kaplan: Sports Business Journal
My guess is Tennis Channel will have some valid arguments when it appeals to full DC circuit
The three judge appeals court panel decision said that Comcast is allowed to make a business decision that it is not profitable to more widely distribute Tennis Channel (TC), and this is not as the FCC alleges proof of discrimination at the expense of Comcast owned Golf Channel and Versus. But while the court said TC offered no evidence Comcast would profit from the wider distribution, bewilderingly the court had no problem with the appellant, Comcast, not submitting evidence it would lose money. And it had no problem with Comcast not submitting evidence that absent its ownership of Golf Channel and Versus, those two would turn a profit for Comcast with wider distribution than Tennis Channel could. I am not a lawyer, but this seems absurd. The charge is Comcast discriminated against TC in favor of its own channels. The three judge panel of the DC Circuit now says but it may not have been discrimination, it may have been a simple business decision. That's it? Hey, the chief programmer at Comcast may have been playing a game of darts and only those he hits got wider distribution. It has to be a two way street. If the panel now says Comcast is only making a business decision, it is not incumbent on Comcast to prove that, and prove the math works differently for Golf and Versus. so the way this works now is Tennis Channel takes this to the full DC circuit, called en banc, and loser likely appeals to Supreme Court.
Chairman & CEO
UPDATE, 6:04 p.m.: Solomon has issued a statement, via his spokesman:
I regret several ill-chosen, excessively colorful and inappropriate words in a private e-mail to colleagues a few weeks ago reflecting my disappointment with a legal decision. The e-mail dealt with an issue that we are obviously passionate about, but the words do not accurately reflect my thoughts about the case or those involved, and I am very sorry that I used them.