FCC gets Orioles, Comcast dispute

O's broadcast arm seeks airing of Nationals games

Asks agency to order showing

June 15, 2005|By Childs Walker | Childs Walker,SUN STAFF

In the latest salvo in a developing showdown between the Baltimore Orioles and Comcast Corp., the club's broadcast arm filed a complaint yesterday with the Federal Communications Commission saying Comcast is unfairly using its near-monopoly over local cable franchises to keep Washington Nationals games from being broadcast on a regional cable network.

"Such intimidation in the marketplace is in direct violation of this commission's rules," says the Orioles' motion, which asks the FCC to order Comcast to carry Nationals games produced by the regional Mid-Atlantic Sports Network.

"Comcast is a monopolist in a snit over the fact that they don't control Washington Nationals broadcasts," said David Frederick, the attorney who filed the FCC complaint. "They are discriminating against Washington Nationals fans, and they are discriminating against MASN because they want to expand their monopoly."

Comcast SportsNet is suing the Orioles in a separate matter, alleging the club violated the network's exclusive contract to negotiate future broadcast and production rights for Orioles games.

"We've always expressed an interest in carrying Nationals games," said Comcast Corp. spokeswoman D'Arcy Rudnay. "We're not carrying MASN because it was a network created in breach of contract with Comcast SportsNet."

The series of legal actions sets up a scenario in which MASN, the dominant producer of televised baseball in the Baltimore-Washington area, cannot come to terms with Comcast, which determines the packages of cable channels available to more than 1 million households in the area.

Though it might seem odd that the Orioles are fighting to put their competitors on the air, the club's 90 percent ownership of MASN means it's in the Orioles' best interest to put Nationals games in as many households as possible.

While its lawsuit is pending (the Orioles filed a motion Monday to dismiss it), Comcast has suspended negotiations to carry Nationals games produced by TCR Sports, the Orioles' broadcast arm and the company behind the MASN trade name.

That means a large percentage of cable viewers in the Washington metropolitan area can watch Nationals games only on WDCA/Channel 20 and some viewers in Anne Arundel and Howard counties can't watch them at all.

Comcast is "discriminating against TCR and unlawfully abusing its dominant market position in an attempt to extract an ownership interest in TCR," the motion says.

The motion also says Comcast has mis-portrayed the Orioles' dealings with the cable company in letters to lawmakers and to fellow cable providers.

Comcast officials have denied seeking a share of MASN, which is slated to produce and broadcast both Orioles and Nationals games starting in 2007.

"We've never sought equity in MASN in any way, and we still have no interest," Rudnay said.

The Orioles' complaint touches on broader issues that are developing in communications law as companies such as Comcast and Time Warner acquire greater shares of the national cable market.

"There is concern that there is a great deal of consolidation going on and that the large cable companies can really use that to put pressure on independent producers of programming," said Joe Van Eaton, a Washington-based communications lawyer.

Van Eaton said public interest groups are lining up against Comcast and Time Warner's plans to divide the remains of bankrupt Adelphia and create pockets of regional dominance for each company. He said the Orioles' complaint might ultimately make an interesting filing in that case.

Van Eaton's partner, Nick Miller, said he's not sure how far the complaint itself will go.

"Is it a frivolous claim? No," he said. "But is it on the outer limits of what the FCC has done in enforcing the statutes? Yes."

Others said that's an understatement.

"How the FCC can order a private enterprise to carry material it doesn't want to carry is beyond me," said Bruce Fein, a Washington lawyer and former general counsel to the FCC. "It just seems to me that that would be asking the FCC to go way beyond its jurisdiction."

Attorneys for the Orioles acknowledged there isn't much precedent for their claim but said they have a strong complaint under anti-discrimination statutes in federal law governing cable television.

Comcast officials argue that their dispute with the Orioles has little to do with such broader issues. They believe the club is trying to take something Comcast already owns - the right to negotiate broadcast and production for Orioles games starting in 2007 - and sell it back to the cable giant. And they say they can't do business with MASN until that is settled.

"The FCC has never required a cable operator to carry programming that was created in breach of contract," Rudnay said.

Frederick called that argument "pure malarkey," saying the FCC complaint addresses Nationals game while Comcast's lawsuit addresses Orioles games in 2007 and beyond.

The Comcast suit says that by joining with Major League Baseball on MASN, the Orioles have violated a contract that gives Comcast SportsNet exclusive negotiating rights through this year and the right to match any offer after that.

The Orioles claim the lawsuit is baseless because MASN is a trade name and not a third-party company.

Both sides claim they want the best for Nationals fans, but fans said they have little love for either side.

Said Nats Fan Club President Colin Mills: "Every time that either side invokes us, it feels like there are these two big guys in a gunfight and one grabs the little kid, which is the Nationals, and says, `I'll shoot him in the head if you don't give us what we want.'"

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