On Feb. 25, the U.S. Court of Appeals for the D.C. Circuit will hear oral arguments in Comcast Cable Communications v. FCC.
This is the case in which the FCC, with commissioners Robert McDowell and Ajit Pai dissenting, held that Comcast unlawfully discriminated against the Tennis Channel by refusing to accede to Tennis’ request — right in the middle of a contract term — that it be moved to a program tier with broader distribution than the one on which it was carried.
After all is said and done, the court should call the FCC for a clear double fault. First, based on the facts of the case, the FCC should not have found that Comcast committed a statutory violation. Even granting that the “discrimination” standard — with its competing “fairly” and “unreasonably” restraint language — is inherently somewhat vague and malleable, under the facts of this case the finding of discrimination on the basis of affiliation is unsupportable.
Second, if the constitutional claim is argued, the court should fi nd that the FCC’s decision violates Comcast’s First Amendment rights.
The Tennis ruling is a clear case of agency regulatory overreach. Hopefully, the D.C. Circuit will vacate the agency’s decision. This will right a wrong and also send a message that such regulatory zealotry is out of bounds.
While the facts of the Tennis case alone warrant a reversal of the discrimination finding, if the court considers the First Amendment claim, it certainly should have in mind that the present competitive multichannel-video marketplace is more competitive now than in 2009, when the D.C. Circuit pointed to “the ever increasing competition among video providers.”
Congress should also have the changed marketplace in mind when it revisits the outdated provisions of the current Communications Act. It is time for Congress to consider jettisoning the entire program-carriage regime, especially as implemented by an overreaching agency.
Randolph May is president of the Free State Foundation.