WASHINGTON — It looks like the first program- carriage discrimination finding upheld by the full Federal Communications Commission won’t survive the U.S. Court of Appeals for the D.C. Circuit.
A three-judge panel from the D.C. Circuit last week hammered the FCC over its decision in the Tennis Channel’s program- carriage discrimination complaint against Comcast. It was the first time the FCC had upheld such a complaint through appeal and into remedy — in this case, mandating than Comcast afford independently owned Tennis equivalent carriage to Golf Channel and NBC Sports Network, both of which are owned by its NBCUniversal subsidiary.
Between the serious First Amendment issues with the FCC’s carriage remedy expressed by Judge Brett Kavanaugh and the contract issues on which Judge Harry Edwards was focused, the FCC appeared to have an uphill fight to keep its Tennis Channel decision from getting bounced back to the agency. That was the handicap from sources on both sides of the argument.
In a 3-2 party-line vote, the FCC last July upheld an agency judge’s ruling that Comcast discriminated against Tennis Channel by carrying it in a sports tier, while carrying its co-owned Golf Channel and Versus (now NBC Sports Network) on a more widely available basic-cable tier. Comcast appealed the decision to the FCC, then to the court.
The FCC’s remedy was to provide Tennis Channel with the same level of distribution as the co-owned channels, whether that be on basic cable, a sports tier or no carriage at all.
Kavanaugh and Edwards were joined by Judge Stephen Williams on the panel, but the former pair asked most of the questions. Since judges often play devil’s advocate, it is hard to predict how they’ll come down on this case. Given that the D.C. Circuit is a conservative panel described by one lawyer familiar with the court as particularly tough on the FCC, though, its decisions may be a bit easier to predict than usual.
The FCC argued that a cable operator did not need to have bottleneck control of an multichannel-TV market for the anti-discrimination provision of the Cable Act to still hold sway. If the court found that a showing of bottleneck control was necessary, the FCC said, the agency should be given a chance to prove such control exists.
The FCC could get its wish. Court watchers last week were expecting the court to vacate the decision and remand it back to the agency, which would have to demonstrate that Comcast’s move was anticompetitive.
But it was not all coal and switches for the commission. The same court found that the FCC had justified its decision to revise the pricing of pole attachments and to subject localities’ decision-making a “shot clock.” Given that, said Williams, “upholding its decision follows ineluctably.”