by John Andren, Washington Legal Foundation*
The U.S. Court of Appeals for the D.C. Circuit released its eagerly awaited decision in Comcast Cable Communications v. FCC last week. Although the decision was unanimous, all three judges on the panel had something to say on the matter.
The case concerned whether or not Comcast violated section 616 of the Communications Act of 1934 by refusing to provide the same carriage for the Tennis Channel, which Comcast has no ownership in, as it does for the Golf Channel and Versus (now NBC Sports Network), both of which Comcast has ownership in. The FCC and Tennis Channel accused Comcast of “unreasonably restraining” Tennis Channel from competing fairly with Comcast’s own proprietary sports networks, while Comcast contended their decision to not offer Tennis Channel more broadly was based on nothing more than “a straight up financial analysis.”
The court’s opinion was authored by Senior Circuit Judge Stephen F. Williams, while Circuit Judge Brett M. Kavanaugh and Senior Circuit Judge Harry T. Edwards each filed concurring opinions.
Judge Williams’ opinion was the shortest of the three and refused to directly address the First Amendment and statute of limitation claims argued in Comcast’s brief. Instead, Judge Williams found it convincing enough that neither Tennis Channel nor FCC could provide any evidence of any financial benefit to Comcast should they distribute Tennis Channel on a more widely available programming tier (Comcast currently distributes Tennis Channel on their “Sports Tier” which is available to subscribers only for an additional cost). The court then agreed with Comcast that its decision to restrict Tennis Channel’s carriage as compared to Golf Channel and Versus was simply a business decision—DirecTV and Dish Network, which both have shares in Tennis Channel similarly carry Golf Channel and Versus more broadly—and not a nefarious plot to squash unaffiliated “competition.”
Judge Kavanaugh joined in full with the court’s decision that Comcast did not discriminate on the basis of affiliation but wrote separately to agree with certain First Amendment arguments advanced by Comcast. The judge noted that the wording of section 616 includes the phrase “unreasonably restrain,” an antitrust term of art that must bring with it its common understanding in the context of antitrust law. Thus, in order to “unreasonably restrain” a competitor (Tennis Channel), he stated, a company (Comcast) must have a monopoly position in the relevant market (national video programming distribution). Since Comcast lacks such monopoly power in the market relevant to FCC and Tennis Channel, any efforts to restrict their choice in what programming they chose to broadcast violates their First Amendment rights to editorial discretion in the same manner “tell[ing] Amazon or Politics and Prose or Barnes & Noble what books to sell” would, or for that matter “tell[ing] the Wall Street Journal or Politico or the Drudge Report what columns to carry.”
Writing last was Judge Edwards who also joined in full with the court, however, he wrote to address the matter of the timeliness of Tennis Channel’s claims, something the judge felt was important enough to comment on because “they highlight the [FCC’s] failure to give fair notice to regulated parties.” The Tennis Channel filed their claim in 2010 based on their contract with Comcast which was signed in 2005, clearly outside the one-year statute of limitations as laid forth in the statute. Judge Edwards saw the FCC and ALJ’s attempts to construe the limitations period as beginning when a competitor first notifies a company of its intent to complain (which Tennis Channel did in 2009) as both an invalid and incomprehensible interpretation that “would render meaningless the limitations period” laid out previously in the statute and a “fail[ure] to credit the sanctity of the parties’ contractual agreements.” If any party could simply tell a company any time they choose to file a complaint and trigger a new statute of limitations time period, there effectively is no statute of limitations.
Even though the court’s decision was based on the finding that Comcast did not engage in any discrimination based on affiliation, Judge Kavanaugh and Judge Edwards both felt the same result could have been reached based on their respective issues. Their dicta could shape how future analogous claims are decided.
*John Andren is an intern with Washington Legal Foundation’s Legal Studies Division who graduated from George Mason University with an economics degree. John will be attending Georgetown Law in the fall.