FCC commissioner Ajit Pai says the FCC's takeaway from a D.C. federal appeals court's overturning of its decision in the Tennis Channel vs. Comcast program carriage complaint is to "refrain from attempting to micromanage cable operators’ programming decisions." He also called the court's decision a "big win for consumers."
Pai joined with former commissioner Robert McDowell in dissenting from the original 3-2 party line decision last July upholding a Media Bureau decision that Comcast has discriminated against Tennis Channel in favor of its co-owned Golf Channel and NBC Sports Network. The Tennis Channel complaint that had been supported by now acting chair Mignon Clyburn, Commissioner Jessica Rosenworcel and former chair Julius Genachowski.
"I am pleased that the U.S. Court of Appeals for the D.C. Circuit has overturned the Commission’s 2012 decision that Comcast had unlawfully discriminated against Tennis Channel," he said. "As former Commissioner McDowell and I explained in our joint dissent, the Commission’s ruling would have resulted in cable operators paying to carry channels that they didn’t want, and these higher programming costs would have come out of the pockets of American consumers."
"With this case concluded," he continued [though Tennis Channel has vowed to appeal it] I hope that the Commission will heed the lesson of today’s D.C. Circuit decision and refrain from attempting to micromanage cable operators’ programming decisions. Given the current state of the video marketplace, I agree with Judge Kavanaugh that 'the FCC cannot tell Comcast how to exercise its editorial discretion about what networks to carry any more than the Government can tell Amazon or Politics and Prose or Barnes & Noble what books to sell; or tell The Wall Street Journal or Politico or the Drudge Report what columns to carry; or tell the MLB Network or ESPN or CBS what games to show…”
McDowell, now a visiting fellow at the Hudson Institute, also weighed in, seeing the decision was one with broad implications for not taking too broad a view of FCC authority.
"I am delighted that the U.S. Court of Appeals for the D.C. Circuit stood for the rule of law and, essentially, the First Amendment rights to free expression and editorial discretion," he said in a statement. "As Commissioner Pai and I noted in our dissent, the Commission's order was not fact-based and was contrary to the plain language of the statute.
"This decision could have implications far beyond the narrow facts of this case. First, it fortifies a high wall around the Commission's legal authority and undercuts its ability to imagine powers and jurisdiction where none exist. Second, with Judge Kavanaugh's cogent arguments, the decision provides the opportunity to snuff out future encroachments on the freedom of speakers to exercise their First Amendment rights. Proponents of further regulation of content on any platform are on notice that the legal bar to make their case just got higher. This decision could directly or indirectly affect everything from the open Internet order to possible future government mandated 'a la carte' rules."