No End in Sight for Comcast-Altitude Fight Keeping Nuggets, Avs Off Your TV

At 6 p.m. Mountain Standard Time tonight, January 22, the Denver Nuggets will be in Texas to take on the Houston Rockets in an especially juicy match-up. When they're at home, the Rockets, led by beardo James Harden, typically wallop the Nugs, three of whose regular starters (Jamal Murray, Gary Harris and Paul Milsap) are hurt. But Houston has lost four straight and seems on the verge of imploding, while Denver's Michael Porter Jr. has lately shown flashes of brilliance that suggest he may overcome his own troubling injury history to become the Mile High City's next star.

Not that most local fans will be able to see what happens. Since last summer, Altitude Sports & Entertainment, the network home of the Nuggets and Colorado Avalanche, has been involved in a high-stakes pissing match with its major distributors — and while it subsequently reached an agreement with DIRECTV, the channel remains inaccessible to subscribers of DISH and Comcast. Complicating matters further is a lawsuit that Altitude filed against Comcast in November, alleging monopolistic practices.

Comcast has now fired back, submitting a motion to dismiss the complaint. And a statement from Comcast spokesperson Leslie Oliver makes it clear the cable-TV giant isn't planning to blink anytime soon.

"Instead of negotiating with Comcast in good faith to reach a mutually acceptable deal, Altitude filed meritless legal claims in an attempt to force Comcast to pay more than Altitude’s content is worth," Oliver maintains. "We think it’s unfair to our customers who do not want to watch the games to overpay to subsidize a network that has numerous distribution options in addition to Comcast, such as other video service providers, online video channels and directly to consumers."

Until the lawsuit was filed, Altitude Sports president Matt Hutchings was eager to talk about the conflict, pushing back at length against Comcast's assertions. "We sit around and wonder why they're doing what they're doing," he told Westword last year. "We asked for a very fair and very equitable extension by terms and conditions, and we've come back multiple times trying to get a deal done. But they just won't accept it."

Now, however, Hutchings has handed off commenting duties to attorneys — another indication that a thaw in relations between the warring parties isn't in the short-term forecast. According to William Isaacson, Altitude's outside counsel with the law firm of Boies Schiller Flexner LLP, "One need only to read the complaint to understand that Comcast wants to kill off Altitude’s competition. The complaint clearly states Comcast is illegally using monopoly power to harm consumers and drive Altitude from the market, and we look forward to proving that in court."

The 23-page motion to dismiss, put forward by Denver's Wheeler Trigg O'Donnell LLP and California's Davis Polk & Wardwell LLP and dated January 14, strikes a very different tone. Its preliminary statement maintains that "this case arises from a routine commercial dispute between a regional sports network (Altitude) and a video programming distributor (Comcast). Altitude wanted Comcast to distribute the network to most of Comcast’s customers in the Denver area, whereas Comcast only wanted to provide it to customers who demand sports content. Altitude and Comcast also disagreed about the right price for Altitude’s programming. The parties could not reach a deal, and Comcast’s license to distribute Altitude expired. Now, in a transparent maneuver to gain negotiating leverage, Altitude attempts to convert this dispute into an antitrust case. But the complaint comes nowhere close to stating a valid antitrust or tort claim and should be dismissed."

The document goes on to argue that "Comcast is not a monopolist...in any relevant market. Comcast allegedly accounts for only 57 percent of video subscribers in the Denver area, far short of the minimum 70 percent to 80 percent necessary for monopoly power under Tenth Circuit precedent. Nor can the complaint establish that Comcast is attempting to monopolize a distinct market for regional sports rights, because Comcast’s current share of that market is zero, and there are no allegations showing that another large regional sports network in Denver (AT&T) will exit the market."

In addition, "Altitude fails to plead the requisite harm to competition. Altitude does not plead facts showing that Comcast’s loss of Altitude’s programming has caused or will cause Comcast to acquire or maintain 'monopsony' power as a purchaser of content in Denver. Nor does Altitude allege facts establishing that there will be harm to competition in the alleged sports rights market. Instead, the complaint only speculates that Comcast could replace Altitude in that market — a mere substitution that might harm Altitude but would not harm competition."

The case is moving through U.S. District Court for the District of Colorado, and the next step in its journey involves a judge deciding whether the whole matter should be tossed, as Comcast has requested, or if there's enough evidence for it to continue.

In the meantime, Altitude is still blacked out on Comcast and DISH, which offers this icy take on its part of the controversy: "We remain available to talk with Altitude. We're sports fans, too, but we have to think of all of our customers. We simply can't do a deal that asks the overwhelming majority of our customers to pay for the slim minority who watch Altitude."

Click to read Comcast's motion to dismiss the Altitude Sports & Entertainment lawsuit.