TCR Sports Broadcasting Holding, L.L.P. v. Federal Communications Commission
679 F.3d 269
4th Cir.2012Background
- 1992 Cable Act directs FCC to regulate carriage and prohibit unfair practices; Program Carriage Order aims to prevent coercive deals and maintain competition.
- Adelphia Order (2006) applies special arbitration route for RSNs denied carriage by Time Warner; arbitration process with de novo FCC review.
- Mid-Atlantic sought statewide analog carriage in North Carolina; Time Warner offered digital or eastern NC analog, but not statewide analog.
- Arbitration in 2008 sided with Mid-Atlantic, finding Time Warner discriminated based on affiliation; Time Warner sought FCC review.
- FCC, in 2010, reversed and vacated the arbitration award, finding no impermissible discrimination and citing high costs and limited North Carolina demand; Mid-Atlantic petitions for remand and vacatur.
- Court of Appeals affirms FCC, holding agency acted within its discretion and discrimination not shown; decision evaluated under APA standard of review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FCC reasonably credited post hoc explanations for the decision | Mid-Atlantic argues Time Warner's explanations are post hoc and unreliable | Time Warner maintains explanations are legitimate business reasons | FCC reasonably credited the explanations and they were credible. |
| Whether lack of contemporaneous documents undermines the reasons | Mid-Atlantic contends absence of contemporaneous docs undermines justification | Time Warner points to sworn statements and arbitration record | Absence of contemporaneous docs does not undermine credibility; sworn evidence sufficient. |
| Whether Time Warner's nondiscriminatory reasons rebut prima facie discrimination | Mid-Atlantic asserts prima facie discrimination by Time Warner | Time Warner provided legitimate, nondiscriminatory reasons for denial | Time Warner satisfied the burden with legitimate nondiscriminatory justifications. |
| Whether the FCC’s weighing of costs and demand shows no harm to competition | Mid-Atlantic claims decision harms competition and consumers | FCC case-by-case approach supports legitimate business rationale; no anti-competitive harm shown | Evidence supports the FCC’s conclusion that decisions were not anticompetitive. |
| Standard of review under the APA and deference to agency findings | No explicit fifth issue; implied challenge to deference | APA review is highly deferential; agency findings sustained if supported by substantial evidence | FCC order affirmed; not arbitrary or capricious. |
Key Cases Cited
- Merrick v. Farmers Ins. Group, 892 F.2d 1434 (9th Cir.1990) (rejects timing-based credibility challenges in discrimination cases)
- Adeyemi v. District of Columbia, 525 F.3d 1222 (D.C.Cir.2008) (timing of explanations not dispositive; lack of contemporaneous docs not fatal)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (U.S. 1989) (pretext and mixed-motive considerations in discrimination analysis)
- McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (U.S. 1995) (after-acquired evidence and post-employment justification issues)
- NLRB v. Grand Canyon Mining Co., 116 F.3d 1039 (4th Cir.1997) (substantial evidence standard; review of agency findings)
- HQM of Bayside, LLC, 518 F.3d 256 (4th Cir.2008) (substantial evidence standard; deferential review)