Court of Appeals Rejects FCC's Cable Subscriber Cap

olsmeister writes "The US Court of Appeals Friday threw out the FCC's cap on the number of cable subscribers one operator can serve, saying the FCC was 'derelict' in not giving DBS its due as a legitimate competitor. 'We agree with Comcast that the 30% subscriber limit is arbitrary and capricious. We therefore grant the petition and vacate the Rule,' said the court, which concluded that there was ample evidence of an increasingly competitive communications marketplace and that cable did not have undue control on the programming pipeline. The FCC commissioner's statement (PDF) is available online."

Comments

Ambigious Emotions

[hardburn]

. . . concluded that there was ample evidence of an increasingly competitive communications marketplace and that cable did not have undue control on the programming pipeline.

I just crapped my pants, but I'm not sure if it was from laughter or fear.

Re:Not around here

[soupcan58]

I know in my area, it's Comcast or satellite for most of the area. We don't have Fios, AND we don't have Uverse in very many areas. There's just not much of a chance.

seems like activist judging by conservatives

[Trepidity]

Congress clearly empowered---in fact required---the FCC to set subscriber caps on cable operators in the Cable Act (1992). The court striking down these limits appears to be engaging in legislative policy analysis that is Congress's purview, not the D.C. Circuit's. It may be true that non-cable competition, such as from DirecTV, means that horizontal ownership limits within the cable industry itself are no longer as necessary to maintain overall competition as they were in 1992. But that's a decision for Congress, not the D.C. Circuit, to make.

I mean the court pretty brazenly admits as much. From the decision:

Satellite and fiber optic video providers have entered the market and grown in market share since the Congress passed the 1992 Act, and particularly in recent years. Cable operators, therefore, no longer have the bottleneck power over programming that concerned the Congress in 1992.

What they appear to have failed to explain is how the fact that circumstances have changed since Congress passed the 1992 Act, so that the factors that "concerned the Congress in 1992" arguably no longer apply, ought to make any difference as far as the court's job is concerned. Regardless of whether the factors that concerned the Congress in 1992 still apply, the Act remains in force until repealed or amended, and the D.C. Circuit is not empowered to repeal or amend it. Ignoring the text of the statute and substituting this sort of policy analysis --- "we're pretty sure Congress intended to do something with this act that no longer applies, so we're going to assume Congress would've wanted it amended, and we'll just go ahead and amend it right now" --- is lawless judicial activism at its worst.

Re:seems like activist judging by conservatives

[chazzf]

Well, no. If you look at the text of the law itself (USSC 47 533 (f)) (http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000533----000-.html), the FCC was given the power to "ensure that no cable operator or group of cable operators can unfairly impede, either because of the size of any individual operator or because of joint actions by a group of operators of sufficient size, the flow of video programming from the video programmer to the consumer", among other provisions. The court's position is that the 30% rule, which the FCC first adopted in 1993, no longer complies with the meaning of the Act because the marketplace has changed. The court cites, among other things, the growth of both dish services and the entrance of telephone companies into the television market. The court was also dubious of the methodology the FCC used to devise and defend the 30% rule. These are valid questions for a court to consider and completely within its remit.

Re:seems like activist judging by conservatives

[Trepidity]

I can see people taking issue with some parts of my post (perhaps this could be defended as non-activist), but it'd be hard to argue that Reagan administration member and Reagan judicial appointee Douglas Ginsburg isn't "a conservative".

Re:Not around here

[Nakago4]

Not everyone has an unobstructed view to the south. What if you live on the north side of an apartment building? or have lots of trees in the way? or a tall building? Satellite is simply not an option for a large number of people.

Some links

[chazzf]

Full text of the case, Comcast Corporation v. FCC, available here: http://pacer.cadc.uscourts.gov/common/opinions/200908/08-1114-1203454.pdf. The case was heard by a three-judge panel of the Court of Appeals for the District of Columbia. Douglas Ginsburg wrote the opinion, joined by Brett Kavanaugh and Raymond Randolph.

New York City...

[djrok212]

New York City is a pretty big market by most counts, however in most of the city Time Warner is your ONLY choice for cable service. On top of that, most apartment buildings don't allow for the installation of satellite dishes, so Direct TV and Dish Networks are both out as options.

Re:Real competition from FiOS

[freedom_india]

5Mbps down?
Wow!
In India i get 16Mbps down, and 4.4Mbps Up with a 100GB per month traffic limit at $100/- per month.
Oh and that includes IP TV, a free TiVO so i can record, rewind and watch shows i missed.

Re:Real competition from FiOS

[marnues]

Depending on the quality of thr IP TV, that's not necessarily a good deal around here. $100 a month should get you a hell of an internet access. However, I think the GP is confused about their speeds as the lowest FiOS speed is 15/5 for $55/month.

Re:why this is bad.

[caladine]

You'd be surprised how many areas only have one broadband provider. DSL isn't an option at my house (can only get ISDN speeds here), and Verizon/AT&T only laugh at me when I ask when service might be available through them. Comcast has a monopoly here, and service only gets more expensive and less reliable. At my father's house, he has a huge list of choices. Good DSL, a cable company that actually has to compete, and AT&T uverse. Actual competition, and it shows. Not only does he get more services for his money, it's more reliable, and he's spending $50+ less per month that I do (no, he's not even paying a promotional price right now).

Re:Real competition from FiOS

[soundguy]

My business-class FIOS in Seattle is 20/20 with a static IP. I run servers on it. No caps. No limits. About $130 a month. That's like $6.50 a megabit. I can't even get Cogent for that in a carrier-neutral facility unless I commit to a gigabit for 2-3 years. The hardware at the house seems to be clocked for 256mbps and everyone I've talked to says the fiber they use for drops is theoretically good for a gigabit. (no idea what's out there on the road lead though)

I currently have analog Comcast cable, but they're forcing the digital transition next month. Just did some shopping and in the long run FIOS is cheaper and has more than twice as many channels, so I'll be telling Comcast to go piss up a rope in a week or so.