D.C. Circuit Denies Tennis Channel Bid to Reopen Comcast Carriage Complaint
Tennis Channel was "misplaced" in its focus on federal code for judicial review of FCC orders, the U.S. Court of the Appeals for the D.C. Circuit said Tuesday, rejecting the channel's petition for review of the FCC's 2015 decision (see 1501280059) not to reopen Tennis Channel's carriage complaint against Comcast. Communications Act Section 402(h) merely requires the agency to carry out court decisions and doesn't require courts to remand proceedings for further review and fact-finding if they find any agency's reasons deficient, the D.C. Circuit said in its 12-page opinion (in Pacer). It said the FCC conducted proceedings consistent with the court's grant of Comcast's petition for review, and thus satisfied its obligations.
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"Review of the Commission's denial of further proceedings is highly deferential," the three-judge panel said, saying Tennis Chanel would have to show an abuse of discretion -- something it failed to do. The FCC correctly decided the D.C. Circuit's 2013 decision granting Comcast's petition for review and the administrative record didn't contain evidence to support a finding of Comcast committing discrimination under Section 616, the court said, so its rejection of Tennis Channels request "was hardly a clear abuse of discretion." Neither the FCC nor Tennis Channel commented Tuesday.
The D.C. Circuit said FCC reasoning for not reopening the record to allow submission of additional evidence, while brief, was sufficient. "The failure to develop evidence to rebut [intervenor] Comcast's asserted business decision appears to be a problem of [Tennis Channel's] own making," it said, saying Tennis Channel failed to show how the FCC "abused its discretion in declining to extend the proceedings." In oral argument in April, Tennis Channel indicated if the court reopened its Comcast complaint, the programmer likely would produce expert evidence showing the business downsides the cable operator took on itself to stifle competition from the channel to affiliated programming (see 1604180024).
If the FCC were going to take that 2013 decision to mean additional record analysis on remand, the agency first would need to ignore the court when it said it had reviewed the administrative record and hadn't found substantial evidence to support a finding of Section 616 discrimination, the appellate court said. "At best," the court could remand the case to the FCC for further review to determine if there were sufficient evidence to support the FCC's 2012 order against Comcast (see 1207260038), but the D.C. Circuit didn't exercise that option. That means the FCC was right to conclude there wasn't anything in the administrative record to back a finding of discrimination, the D.C. Circuit said.