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

Not around here

[SomeJoel]

"an increasingly competitive communications marketplace"

Where I live, there's only one cable company to choose from. They must be counting DirecTV and the like as "competition", because I've only once in my entire life had the ability to choose from two cable companies. And that didn't last long either, because the one I picked (the smaller, better one) got bought out by the large, crappier one after about a year. And I personally don't count DirecTV as an adequate "replacement" for cable.

Re:Not around here

[dgatwood]

It's a replacement for cable TV. It is not a full replacement for everything cable provides these days. Want Internet service? Hope you like 500ms latency.

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.

Increasing competition?

[elashish14]

Then why do the courts not force cable companies to share their lines with competitors? (Maybe that decision was exclusive to internet?)

We dumped Comcast years ago because they would raise their rates arbitrarily and with no limit. And yet the courts have this delusion that their is competition - then why are they allowed to do this? Sure....

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.

Court of Appeals is fracking retarded.

[girlintraining]

Since when does a dialup modem hung off the side of a satellite dish constitute "competition"? Seriously, I want to go up to this judge and ask "Are you from the past?" This is like saying that a Ford Festiva competes with a [insert sports car guys drool over here]!

* Yes, my knowledge of cars is limited... I drive a purple Saturn. That is as much as I know about the car. But Slashdot loves car analogies, so work with me here.