Cable operators are turning to federal courts of appeal to challenge Federal Communications Commission activity relating to Section 616 of the Communications Act, which — along with the FCC’s implementing rules — prohibits vertically integrated cable operators  from discriminating against unaffiliated cable networks.  

Comcast Appeals Carriage Decision to D.C. Circuit

Comcast has filed a petition for review to the D.C. Circuit in connection with its carriage dispute with the Tennis Channel.  In a decision that marked the first time an independent cable network has prevailed under Section 616 since the statute was passed two decades ago, the Commission concluded earlier this year that Comcast discriminated against Tennis Channel in favor of its wholly-owned networks, Golf Channel and Versus (now re-named the NBC Sports Network), in violation of Section 616.  The Commission ordered Comcast to carry Tennis Channel “on the same distribution tier, reaching the same number of subscribers, as it does Golf Channel and Versus.”  It declined, however, to order Comcast to carry Tennis Channel on a channel position “very close” to Golf Channel and Versus.  Comcast is now appealing the decision, and while the FCC denied a motion filed by Comcast to stay its order, a separate motion to stay is pending before the D.C. Circuit.  Covington represented Tennis Channel in this proceeding.

Second Circuit To Consider Challenge To Program Carriage Rule Changes

Separately, the National Cable & Telecommunications Association and Time Warner Cable, Inc. have filed reply briefs to the Second Circuit Court of Appeals in their consolidated challenge to changes to the FCC made to its implementing rules (known as the “program carriage rules”) in 2011.  The Second Circuit has tentatively scheduled oral argument in the case for the week of October 1. 

Last year, the FCC changed its program carriage rules last year in several respects:

  • They clarify the evidentiary requirements that a cable network would need to show to establish a prima facie case of discrimination; and
  • They codify the agency’s procedure for granting an interim stay (or “standstill”) to a cable network with respect to the terms of carriage.

NCTA and Time Warner raise arguments under the Administrative Procedure Act and challenge the rules as violative of cable operator’s First Amendment interests.  They also argue that the FCC does not have the statutory authority to impose standstills on cable operators under Section 616.   Parties filing amici briefs with the Second Circuit included Tennis Channel, NFL Enterprises, Bloomberg, Public Knowledge, and the National Association of Broadcasters.  All amici filed in support of the FCC’s position.  Covington represented Tennis Channel and NFL Enterprises in their filings.