Tennis Channel, Inc. v. Federal Communications Commission
2016 U.S. App. LEXIS 12356
D.C. Cir.2016Background
- Tennis Channel filed an administrative complaint under 47 U.S.C. § 536 (Section 616) alleging Comcast discriminated in programming-tier placement by favoring affiliated networks.
- An administrative law judge and the FCC’s Initial Order found Comcast violated Section 616; Comcast petitioned and the D.C. Circuit vacated those findings in Comcast Cable Commc’ns v. FCC ("Tennis I").
- On remand Tennis Channel asked the FCC to reexamine the administrative record under the evidentiary approach discussed in Tennis I or to reopen the record to submit new evidence.
- The FCC issued a Remand Order denying Tennis Channel’s petition: it concluded Tennis I had already shown the administrative record lacked substantial evidence of affiliation-based discrimination and declined to reopen proceedings.
- Tennis Channel petitioned for review of the Remand Order, arguing the FCC misread Tennis I, should have made new factual findings on remand, and should have allowed additional briefing or reopened the record.
- The D.C. Circuit denied the petition, holding the FCC reasonably interpreted Tennis I, acted within its discretion in declining to reopen the record, and did not act arbitrarily or capriciously.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FCC failed to make required findings on remand and should have reexamined the record under Tennis I | Tennis Channel: Tennis I only rejected the Initial Order’s reasoning and required the FCC to reassess the full administrative record (or reopen it) under the court’s evidentiary focus | FCC/Comcast: Tennis I had already reviewed the administrative record and concluded it lacked substantial evidence to support discrimination, leaving no room for further findings on remand | Court: FCC reasonably read Tennis I as having concluded the record lacked substantial evidence; denial of the complaint was not arbitrary or capricious |
| Whether Tennis I announced a novel evidentiary test forcing reopening or additional factfinding | Tennis Channel: Tennis I created a new focus (ability to recoup costs/net-benefit) that required fresh review or new evidence | FCC/Comcast: Tennis I did not create a new test but highlighted example evidence; no novel test requiring remand | Court: Tennis I did not mandate reopening; FCC’s interpretation was consistent with precedent |
| Whether the FCC abused discretion by denying requests for further briefing | Tennis Channel: Additional briefing could identify record evidence sufficient under Tennis I | FCC/Comcast: Further briefing unnecessary; court already analyzed the record in Tennis I | Court: Denial of additional briefing was not a clear abuse of discretion |
| Whether the FCC abused discretion by refusing to reopen the record to admit new evidence | Tennis Channel: Should be allowed to present evidence (e.g., expert proof of net benefits/advertising revenue) to address Tennis I’s evidentiary concerns | FCC/Comcast: Tennis Channel had a full and fair opportunity earlier; it failed to identify new evidence and did not justify reopening | Court: FCC did not clearly abuse its discretion; Tennis Channel failed to show new evidence or circumstances warranting reopening |
Key Cases Cited
- Comcast Cable Commc’ns v. FCC, 717 F.3d 982 (D.C. Cir. 2013) (vacating FCC’s Initial Order and analyzing record sufficiency under Section 616)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious standard for agency action)
- ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270 (1987) (reviewability of new final agency orders)
- Sprint Nextel Corp. v. FCC, 508 F.3d 1129 (D.C. Cir. 2007) (limits of judicial review to agency’s stated reasons)
- SEC v. Chenery Corp., 318 U.S. 80 (1943) (agency must supply the grounds for its action; courts review the agency’s rationale)
- Sw. Bell Tel. Co. v. FCC, 180 F.3d 307 (D.C. Cir. 1999) (non-reviewability of denial to reopen absent new evidence or changed circumstances)
- E. Carolinas Broad. Co. v. FCC, 762 F.2d 95 (D.C. Cir. 1985) (remand and court/agency obligations)
- TCR Sports Broad. Holding LLP v. FCC, 679 F.3d 269 (4th Cir. 2012) (agency precedent on business-justification defense to discrimination claims)