Tennis Channel Case Could Have Major Implications for FCC Authority over Cable, Lawyers Say
A case before the U.S. Court of Appeals for the D.C. Circuit could have major implications for the FCC’s authority over the cable industry, cable attorneys said. They said the court’s recent stay of an FCC order that Comcast carry the Tennis Channel more broadly than it already does (CD Aug 27 p10) has sparked some optimism among cable lawyers that the industry’s constitutional arguments against FCC regulation may be gaining some ground at the court. Whichever way the court rules, it will have big implications for the FCC’s ability to regulate cable, these lawyers said. A public interest attorney disagreed with those assessments. The FCC, Comcast and Tennis Channel didn’t immediately respond to our queries.
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Despite a wave of stay requests lodged with the court this summer, the D.C. Circuit rarely hears and even less frequently grants requests to block an FCC order pending judicial review, our review of court records found. We looked at the FCC’s cases before the D.C. Circuit after 2006 and found 14 instances where parties asked to stay an FCC order, including three since May of this year. Of those, the vast majority were either dismissed or withdrawn. Three, including Comcast’s, were granted.
It’s impossible to know on what grounds the court granted the stay in Comcast’s appeal. Beyond arguments that the order violated Comcast’s First Amendment rights, Comcast also raised procedural and statutory challenges to the order. In the past, the court has hinted at what elements of a party’s motion persuaded it to grant a stay. For instance, in the litigation that followed a 2008 order laying out E-911 requirements for wireless carriers, the court granted a stay, adding the “movants have demonstrated a likelihood of success based on the order’s procedural irregularities.” But no such clues were to be found in the Comcast stay order. It merely ordered “that the motion to stay be granted,” adding only: “Petitioner has satisfied the requirements for a stay pending court review."
Those requirements are quite stringent, as the court has often pointed out in orders denying stay motions. Parties must demonstrate they have a likelihood of success on the merits of the case and that they will suffer irreparable harm absent a stay, beyond other hurdles. That all typically plays to the FCC’s advantage, a cable industry lawyer said. “I think they do count on the fact that stays are seldom granted and I think they were taken a little aback by the Tennis Channel stay,” the lawyer said.
The case is one of the biggest involving FCC authority in some time, another cable industry attorney said. “If the FCC wins this case, its ability to order people to do stuff increases a lot over what it has now,” the attorney said. “It’s a sleeper” and not getting the attention it ought to, the attorney said.
But a public interest attorney disagreed with that assessment. “The case is important, but the stay is not earth shattering,” said Andrew Schwartzman, a communications attorney. The FCC’s authority to adjudicate program carriage disputes isn’t new, he said. “The only thing different about this case is that based on the particular facts, it is the first time the commission has ruled in favor of a programmer,” he said. “That doesn’t mean it’s an expansion of authority."
The cable industry’s First Amendment arguments have found an open ear on the D.C. Circuit in the past. In a dissent to the court’s 2010 opinion upholding the FCC’s last extension of the ban on exclusive contracts between cable operators and the programming networks they own, Judge Brett Kavanaugh wrote that given changes in the video marketplace, the ban “fails the intermediate scrutiny test, and its infringement on the editorial and speech rights of cable operators and cable programmers cannot be squared with the First Amendment."
Cable operators continue to raise those arguments before the court. In a brief filed Thursday, the NCTA and Time Warner Cable jointly asked the court not to stay the FCC’s recent order largely allowing the viewability requirements of its must-carry rules, in part on First Amendment grounds, to expire. “Indeed, while it is doubtful that any mandatory carriage requirement still could pass muster under the First Amendment in light of the ‘dramatic changes in technology and the marketplace’ acknowledged by the FCC … there can be no serious argument that the Government may compel cable operators to devote their limited capacity to carrying broadcast stations in two different formats,” the brief said.