Tennis Channel, Inc. v. Fed. Commc'ns Comm'n
| Decision Date | 05 July 2016 |
| Docket Number | No. 15–1067,15–1067 |
| Citation | 827 F.3d 137 |
| Parties | The Tennis Channel, Inc., Petitioner, v. Federal Communications Commission and United States of America, Respondents, Comcast Cable Communications, LLC, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Stephen A. Weiswasser argued the cause for petitioner. With him on the briefs was Daniel E. Matro, Washington, DC.
Scott M. Noveck, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the briefs were William J. Baer, Assistant Attorney General, U.S. Department of Justice, Kristen C. Limarzi and Robert J. Wiggers, Attorneys, Jonathan B. Sallet, General Counsel, Federal Communications Commission, David M. Gossett, Deputy General Counsel, and Jacob M. Lewis, Associate General Counsel. Richard K. Welch, Deputy Associate General Counsel, Federal Communications Commission, and Maureen K. Flood, Counsel, entered appearances.
Jonathan C. Bond argued the cause for intervenor Comcast Cable Communications, LLC. With him on the brief were Miguel A. Estrada, Washington, DC, and Lynn R. Charytan.
Before: Rogers, Brown and Pillard, Circuit Judges.
Rogers
, J., Circuit Judge:
This petition for review stems from a complaint filed by the Tennis Channel, Inc., alleging that Comcast Cable Communications, LLC, violated Section 616 of the Communications Act, 47 U.S.C. § 536
, by giving preferential treatment to its affiliated networks in programming tier placement. Tennis Channel prevailed before the Federal Communications Commission, but its fortunes faltered when the court held that the Commission and Tennis Channel had failed to identify substantial evidence of unlawful discrimination based on affiliation. Comcast Cable Commc'ns v. FCC (“Tennis I ”), 717 F.3d 982 (D.C. Cir. 2013). On remand, the Commission resolved the entirety of Tennis Channel's complaint in Comcast's favor and denied Tennis Channel's petition for further proceedings. For the following reasons, we deny the petition for review of the order on remand.
Section 616 of the Communications Act bars multichannel video programming distributors (“MVPD”) like Comcast from discriminating against unaffiliated programming networks like Tennis Channel, a sports programming network, in making decisions about content distribution. 47 U.S.C. § 536(a)(3)
. Such discrimination is unlawful where the effect is to “unreasonably restrain the ability of an unaffiliated video programming vendor to compete fairly.” 47 C.F.R. § 76.1301(c)
.
The administrative law judge ruling on Tennis Channel's complaint found that Comcast had violated Section 616, and the Commission affirmed. Tennis Channel, Inc. (“Initial Order ”), 27 FCC Rcd. 8508, 8509 (2012)
. The court granted Comcast's petition for review, concluding that the record did not support the finding that Comcast had violated Section 616. See
Tennis I , 717 F.3d at 987. Assuming the correctness of the Commission's interpretation of Section 616, id. at 984–85, the court held there was not substantial evidence to show that Comcast had not based its tiering decision on business considerations, id. at 985–87.1 Tennis Channel petitioned for rehearing and rehearing en banc, arguing that Tennis I represented a departure from anti-discrimination precedent, Pet. for Reh'g 4–11, Tennis I , 717 F.3d 982 (2013) (No. 12–1337 ), and seeking an express remand for further proceedings because Tennis I might be understood to preclude further record review by the Commission, id. at 11–15. The court denied the petition.
On remand before the Commission, Tennis Channel filed a petition for further proceedings and reaffirmation of the Initial Order
. Specifically, Tennis Channel requested the Commission reevaluate its complaint against Comcast in view of what it characterized as the “new” evidentiary test established in Tennis I, Pet. 11–12, and argued there was sufficient evidence in the administrative record for the Commission to find Comcast had violated Section 616. Alternatively, Tennis Channel requested that the record be reopened to allow Tennis Channel to submit additional evidence if the Commission concluded the existing record was lacking.
The Commission denied Tennis Channel's petition. It declined, in view of Tennis I
, to search the record for evidence that might sustain the discrimination complaint and denied Tennis Channel's complaint in its entirety. Tennis Channel, Inc. (“Remand Order ”), 30 FCC Rcd. 849, 851–52 ¶ 7 (2015). The Commission concluded that the evidentiary test emphasized in Tennis I was not novel, but could be viewed as “simply provid[ing] examples of the types of evidence that might have been adequate to prove that broader carriage would have yielded net benefits to Comcast.” Id. at 852 ¶ 7. It further concluded that in Tennis I the court had considered the evidence in the administrative record and consequently there was no room left for the Commission to reconsider the discrimination question as the court had “neither invited nor directed the Commission to address on remand the evidentiary shortcomings identified in its decision.” Id. The Commission also denied Tennis Channel's requests for further proceedings. Because Tennis I had already analyzed the administrative record, additional briefing was unnecessary, id. , and because Tennis Channel had had a “full and fair opportunity to litigate its complaint,” the benefit of reopening the record was outweighed by “the interest in bringing the proceeding to a close,” id. at 852 ¶ 8.
Petitioning the court for review of the Remand Order
, Tennis Channel challenges both the Commission's decision to deny its complaint and the determination that no further proceedings are warranted. First, Tennis Channel contends that the Commission ignored its obligation to make findings following remand and erred in determining that the discrimination complaint was fully resolved by Tennis I
's analysis of the record. Had the Commission reexamined the record, Tennis Channel maintains that it would have found evidence of discrimination sufficient to satisfy Tennis I's “new” evidentiary test and to reaffirm its conclusion in the Initial Order that Comcast had unlawfully discriminated on the basis of affiliation. In particular, it would have found evidence that Comcast's asserted business decision was a pretext for affiliate discrimination and that Comcast would have received a net benefit or at least incurred no greater incremental loss from moving Tennis Channel to a more favorable tier. The Commission's decision to reverse the Initial Order and deny Tennis Channel's discrimination complaint was therefore, it maintains, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706 ; see also
Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Second, Tennis Channel contends that this was a situation where the Commission should have allowed further briefing and evidence in view of Tennis I's “new” evidentiary test for proving Section 616 discrimination.
Although Tennis Channel's petition for review might be understood as focusing only on the denial on remand of its requests for the Commission to reconsider the findings in the Initial Order
and make additional factual findings, it is clear that Tennis Channel also objects to the Commission's denial of its complaint. Because that part of the Remand Order is a “new and final order setting forth the rights and obligations of the parties,” see
ICC v. Bhd. of Locomotive Eng'rs , 482 U.S. 270, 278, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987), there is little question that the court has jurisdiction to determine whether the Commission adequately supported its decision to deny the complaint, see id. ; see also
Schoenbohm v. FCC , 204 F.3d 243, 245–46 (D.C. Cir. 2000).
Tennis Channel's contention that the Commission acted arbitrarily and capriciously in denying its complaint is premised on the view that the Commission misread Tennis I
as having determined that there was no evidence in the administrative record that might have supported Tennis Channel's discrimination complaint against Comcast. The better reading of Tennis I, it maintains, is that the court held only that the findings made by the Commission in the Initial Order were insufficient to sustain its discrimination claim. This reading follows, it states, from the traditional administrative law principle that judicial review is limited to analyzing whether the findings and reasoning supplied by the agency adequately support its decision, see, e.g. , Sprint Nextel Corp. v. FCC , 508 F.3d 1129, 1132–33 (D.C. Cir. 2007), and Tennis I's focus on the deficiencies in the Commission's presentation of the evidence, not the record as a whole. Understanding Tennis I to have gone further was all the more remarkable, Tennis Channel suggests, in view of Tennis I's “new” evidentiary test for showing under Section 616 that an MVPD did not make its decision based on a business justification. Had the Commission understood Tennis I to have rejected only the approach in the Initial Order, then the Commission could not have denied Tennis Channel's complaint without conducting additional factfinding on whether there was record evidence that Comcast had not based its tiering decision on business considerations.
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