Comcast Cable Communications, LLC v. Federal Communications Commission
405 U.S. App. D.C. 188
D.C. Cir.2013Background
- FCC regulates MVPD conduct to prevent unaffiliated networks from unfair discrimination in carriage.
- Tennis Channel sued Comcast alleging discrimination by not carrying Tennis on the same broad tier as Golf and Versus.
- Comcast historically carried Golf and Versus more broadly than Tennis on higher-distribution tiers.
- Tennis proposed broader distribution at a per-subscriber price, with evidence of substantial expected costs but no demonstrated net Comcast benefit.
- FCC Order held Comcast discriminated; the court granted the petition and vacated the Order.
- Concurrences discuss market power, First Amendment concerns, and statutory-interpretation issues around Section 616.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §616 requires market power to apply | Tennis argues §616 applies to all, regardless of market power | Comcast contends §616 applies only with market power | Limited to cases with market power (Court ruling: narrow application) |
| Whether the record shows discrimination unreasonably restraining competition | Tennis asserts discrimination harms competition | Comcast argues no net benefit shown and no unreasonable restraint | FCC misapplied antitrust standard; no evidence of benefit; discrimination not proven |
| Whether the complaint was timely under §76.1302(f) | Tennis asserts timely filing under f(3) | Comcast argues untimely under f(1) or improper application of f(3) | Complaint time-barred; should be dismissed |
| Whether the agency violated APA fair notice by changing interpretation | N/A | N/A | Not applicable (addressed as part of timeliness and interpretation concerns) |
| Constitutional avoidance and First Amendment concerns | N/A | N/A | Court suggests Section 616 should be read to avoid First Amendment issues; market-power-based limit applied |
Key Cases Cited
- Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (U.S. 2007) (antitrust 'unreasonable restraints' standard; per se rules and rule of reason context)
- State Oil Co. v. Khan, 522 U.S. 3 (U.S. 1997) (unreasonable restraints require market power)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (U.S. 1994) (cable must-carry and First Amendment considerations; bottleneck power)
- Cablevision Sys. Corp. v. FCC, 649 F.3d 695 (D.C. Cir. 2011) (vertical integration; discuss procompetitive aspects absent market power)
- Comcast Corp. v. FCC, 579 F.3d 1 (D.C. Cir. 2009) (market power in national MVPD market transformation; regime changes)