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Comcast Cable Commc'ns v. FCC & USA, No. 12-1337 (D.C. Cir.)

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Released: December 4, 2012

PUBLIC COPY—SEALED MATERIAL DELETED

ORAL ARGUMENT NOT YET SCHEDULED
BRIEF FOR RESPONDENTS
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 12-1337

COMCAST CABLE COMMUNICATIONS, LLC,
PETITIONER,
V.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS.

ON PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION

CATHERINE G. O’SULLIVAN
SEAN A. LEV
ROBERT J. WIGGERS
GENERAL COUNSEL
ATTORNEYS


PETER KARANJIA
UNITED STATES
DEPUTY GENERAL COUNSEL
DEPARTMENT OF JUSTICE

WASHINGTON, D.C. 20530
JACOB M. LEWIS

ASSOCIATE GENERAL COUNSEL

LAUREL R. BERGOLD
COUNSEL

FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740


CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES



A. Parties and Amici


Except for Bloomberg, L.P., which has filed a notice of its intent to
participate as amicus curiae, all parties, intervenors, and amici appearing in
this court are listed in the Brief for Comcast Cable Communications, LLC.

B. Ruling Under Review

The Tennis Channel, Inc. v. Comcast Cable Commc’ns, LLC, 27 FCC
Rcd 8508 (2012) (J.A.1385).

C. Related Cases

The order on review has not been before this Court previously. Some
of the issues in this case are similar to those before the United States Court of
Appeals for the Second Circuit in Time Warner Cable Inc., et. al. v. FCC, Nos.
11-4138 & 11-5152.







TABLE OF CONTENTS


TABLE OF AUTHORITIES .......................................................................... iv
GLOSSARY ................................................................................................... vii
INTRODUCTION AND STATEMENT OF ISSUES
PRESENTED .............................................................................................1
STATUTES AND REGULATIONS ................................................................3
COUNTERSTATEMENT OF THE CASE ......................................................3
I.
BACKGROUND ...............................................................................3
A. Statutory And Regulatory Background ....................................3
B. Factual Background ..................................................................6
II. THIS PROCEEDING ......................................................................11
A. The Initial Administrative Proceedings ..................................11
B. The ALJ’s Initial Decision......................................................11
C. The Commission’s Order .......................................................14
STANDARD OF REVIEW ............................................................................19
SUMMARY OF ARGUMENT ......................................................................21
ARGUMENT ..................................................................................................25
I.
THE COMMISSION ACTED WELL WITHIN ITS
DISCRETION IN CONCLUDING THAT COMCAST
VIOLATED SECTION 616. ...........................................................25
A. The FCC Reasonably Determined That Comcast
Discriminated Against Tennis Channel On The
Basis Of Affiliation.................................................................25
1.
The FCC’s Finding Of Affiliation-Based
Discrimination Is Supported By Substantial
Evidence. ........................................................................25
i

a.
Comcast Engaged In A Pattern Of
Favoring Its Affiliates. ...........................................26
b.
Tennis Channel Is Similarly Situated
To Comcast’s Affiliates..........................................29
c.
The Commission Reasonably Rejected
Comcast’s Excuses. ................................................31
2.
The FCC’s Finding Of Affiliation-Based
Discrimination Is Firmly Grounded In The
Statutory Text And Legislative History, And
Is Consistent With Discrimination Law In
General............................................................................37
B. The Commission Reasonably Construed And
Applied The Unreasonable Restraint Standard.......................39
1.
The FCC Reasonably Interpreted The
Unreasonable Restraint Standard Not To
Incorporate Antitrust Principles. ....................................40
2.
Substantial Evidence Supports The FCC’s
Conclusion That Comcast Unreasonably
Restrained Tennis Channel’s Ability To
Compete. .........................................................................46
II. THE ORDER IS CONSISTENT WITH THE FIRST
AMENDMENT. ..............................................................................52
A. The Order Is Subject To Intermediate Scrutiny. ....................52
B. The Order Satisfies Intermediate Scrutiny. ............................57
1.
The FCC’s Action Directly Advances
Substantial Government Interests...................................58
2.
The Equal-Carriage Remedy Does Not
Burden Substantially More Speech Than
Necessary. .......................................................................60
ii

III. THE COMMISSION REASONABLY CONSTRUED
ITS STATUTE OF LIMITATIONS RULE IN
CONCLUDING THAT TENNIS CHANNEL’S
COMPLAINT WAS TIMELY FILED............................................63
CONCLUSION ...............................................................................................68
iii

TABLE OF AUTHORITIES

CASES


Alliotta v. Bair, 614 F.3d 556 (D.C. Cir. 2010) ..............................................38
Associated Press v. United States, 326 U.S. 1
(1945) ..........................................................................................................58
AT&T v. Iowa Util. Bd., 525 U.S. 366 (1999) ................................................42
*
BellSouth Corp. v. FCC, 144 F.3d 58 (D.C. Cir.
1998)..................................................................................................... 55, 56
Cablevision Sys. Corp. v. FCC, 597 F.3d 1306
(D.C. Cir. 2010)...........................................................................................59
*
Cablevision Sys. Corp. v. FCC, 649 F.3d 695 (D.C.
Cir. 2011).................................................................................. 41, 42, 55, 59
Capital Network Sys. v. FCC, 28 F.3d 201 (D.C.
Cir. 1994).............................................................................................. 21, 41
Cellco P’ship v. FCC, 357 F.3d 88 (D.C. Cir. 2004)......................................20
*
Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984) ................................. 20, 42
Comcast Corp. v. FCC, 579 F.3d 1 (2009) .....................................................43
Consolo v. FMC, 383 U.S. 607 (1966) ...........................................................33
Corley v. United States, 129 S. Ct. 1558 (2009) .............................................41
Desert Place, Inc. v. Costa, 539 U.S. 90 (2003) .............................................38
Dickson v. Nat’l Trans. Safety Bd., 639 F.3d 539
(D.C. Cir. 2011)...........................................................................................20
Friends of Blackwater v. Salazar, 691 F.3d 428
(D.C. Cir. 2012)...........................................................................................45
Goldwasser v. Ameritech Corp., 222 F.3d 390 (7th
Cir. 2000).....................................................................................................42
Highlands Hosp. Corp. v. NLRB, 508 F.3d 28 (D.C.
Cir. 2007).....................................................................................................20
Jifry v. FAA, 370 F.3d 1174 (D.C. Cir. 2004).................................................21
Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241
(1974) ..........................................................................................................57
iv

Nat’l Ass’n of Broadcasters v. FCC, 569 F.3d 416
(D.C. Cir. 2009)...........................................................................................62
Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967 (2005)...........................................................20
New Radio v. FCC, 804 F.2d 756 (D.C. Cir. 1986) ........................................54
Palmer v. Shultz, 814 F.2d 84 (D.C. Cir. 1987)..............................................38
Star Wireless LCC v. FCC, 522 F.3d 469 (D.C. Cir.
2008)..................................................................................................... 21, 64
Thompson Med. Co. v. FTC, 791 F.2d 189 (D.C.
Cir. 1986).....................................................................................................30
Time Warner Entertainment Co. v. FCC, 240 F.3d
1126 (D.C. Cir. 2001)..................................................................................43
Time Warner Entertainment Co. v. FCC, 93 F.3d
957 (D.C. Cir. 1996)............................................................................. 53, 58
*
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622
(1994) ........................................................................... 54, 56, 57, 58, 59, 60
*
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180
(1997) ........................................................................... 42, 53, 57, 58, 59, 60
United States Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711 (1983)........................................................................38
United States v. FCC, 652 F.3d 72 (D.C. Cir. 1980) ............................... 23, 42
United States v. Stevens, 130 S. Ct. 1577 (2010)............................................57
Verizon Commc’ns, Inc. v. Law Offices of Curtis V.
Trinko, LLP, 540 U.S. 398 (2004)...............................................................40
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ................... 52, 54, 56, 60

ADMINISTRATIVE DECISIONS


Herring Broad., Inc. d/b/a WealthTV v. Time
Warner Cable, Inc., 23 FCC Rcd 14787 (Media
Bur. 2008)....................................................................................................66
Herring Broad., Inc. d/b/a WealthTV v. Time
Warner Cable, Inc., 26 FCC Rcd 8971 (2001) ...........................................27
Implementation of Sections 12 and 19, 9 FCC Rcd
2642 (1993) ...............................................................................................5, 6
v

In the Matter of Time Warner Inc., FTC Docket No.
C-3709, available at
http://www.ftc.gov/os/1997/02/c3709other.htm .........................................50

STATUTES AND REGULATIONS


Cable Television Consumer Protection and
Competition Act of 1992, Pub. L. No. 102-385,
106 Stat. 1460....................................................................................... 1, 3, 4
5 U.S.C. §706(2)(A) ........................................................................................19
47 U.S.C. §202(a)............................................................................................39
47 U.S.C. §533(f)(2)(C) ..................................................................................43
47 U.S.C. §534 ................................................................................................44
47 U.S.C. §535 ................................................................................................44
* 47
U.S.C.
§536(a)(3) .................................................................. 2, 4, 26, 39, 50
47 U.S.C. §536(a)(5) .....................................................................................2, 5
47 C.F.R. §76.1301(c) .......................................................................................4
47 C.F.R. §76.1302(f)(1)(2010) ......................................................................64
* 47
C.F.R.
§76.1302(f)(3)(2010) ......................................................................63

OTHERS


3B Areeda & Hovenkamp, ANTITRUST LAW (3d ed.
2008)............................................................................................................40
H.R. Rep. No. 102-628 (1992) ................................................. 5, 15, 37, 44, 51
S. Rep. No. 102-92 (1991) ............................................................................3, 4


* Cases and other authorities principally relied upon are marked with
asterisks.

vi

GLOSSARY

ALJ

Administrative
Law
Judge

Comcast

Comcast
Cable
Communications,
LLC


FCC

Federal
Communications
Commission


HDO

Hearing
Designation
Order

ID
The Tennis Channel, Inc. v. Comcast Cable
Commc’ns, LLC
, 26 FCC Rcd 17160 (2011)

MVPD
Multichannel Video Programming
Distributor

NTCA
National Cable & Telecommunications
Association

Order
The Tennis Channel, Inc. v. Comcast Cable
Commc’ns, LLC
, 27 FCC Rcd 8508 (2012)

Sports Tier


Sports and Entertainment Package


vii


IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 12-1337

COMCAST CABLE COMMUNICATIONS, LLC,
PETITIONER,
V.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS.

ON PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION

BRIEF FOR RESPONDENTS

INTRODUCTION AND STATEMENT OF ISSUES PRESENTED

Animated by concerns that vertically integrated cable operators have
the incentive and ability to favor their affiliated programmers, Congress
enacted section 616 of the Communications Act of 1934, see Cable
Television Consumer Protection and Competition Act of 1992, Pub. L. No.
102-385, §12, 106 Stat. 1460 (“1992 Cable Act”), to promote competition
and diversity among programming networks in the pay-TV market. Section
616 prohibits any multichannel video programming distributor (“MVPD”)
from “discriminating . . . on the basis of affiliation or nonaffiliation of [video


programming] vendors in the selection, terms, or conditions for carriage of
video programming” if the effect of such discrimination “is to unreasonably
restrain the ability of an unaffiliated video programming vendor to compete
fairly.” 47 U.S.C. §536(a)(3). The statute directs the FCC to “provide for
appropriate penalties and remedies” for such discrimination, “including
carriage.” Id., §536(a)(5).
This case involves a section 616 discrimination complaint that Tennis
Channel, a sports programming network, filed with the Federal
Communications Commission against Comcast Cable Communications, LLC
(“Comcast”), the nation’s largest cable operator. An FCC Administrative
Law Judge (“ALJ”) conducted a six-day hearing featuring live testimony and
reviewed a voluminous evidentiary record. The ALJ then concluded that
Comcast had discriminated on the basis of affiliation by giving substantially
broader carriage to its affiliated sports networks—Golf Channel and Versus
(now NBC Sports)—than it gave to Tennis Channel. The FCC subsequently
affirmed the ALJ’s finding that Comcast violated section 616, and ordered
Comcast to cease its discriminatory carriage by providing Tennis Channel
with the same level of distribution as Golf Channel and Versus. The Tennis
Channel, Inc. v. Comcast Cable Commc’ns, LLC, 27 FCC Rcd 8508 (2012)
(“Order”) (J.A.1385).
2



The issues on review are as follows:
(1) Whether the FCC’s order was based on a permissible reading of
the Communications Act and was supported by substantial evidence.
(2) Whether the FCC’s order comports with the First Amendment.
(3) Whether the FCC acted within its discretion in construing its own
statute of limitations rule.

STATUTES AND REGULATIONS

Pertinent statutes and regulations are set forth in an addendum to
Comcast’s brief.

COUNTERSTATEMENT OF THE CASE

I.

BACKGROUND

A.

Statutory And Regulatory Background

By the early 1990s, the cable television industry had grown “highly
concentrated.” 1992 Cable Act, §2(a)(4). Congress became concerned that
“such concentration” could reduce “the number of media voices available to
consumers” by creating “barriers to entry for new programmers.” Id.
This threat to competition in the video programming and distribution
markets was “exacerbated by the increased vertical integration” of producers
and distributors of cable programming. S. Rep. No. 102-92, at 24 (1991)
(“Senate Report”). Simply put, cable operators were increasingly controlling
the programming channels they distributed, which allowed them to promote
3


those channels over the channels operated by their competitors. As Congress
found, vertical integration gives cable operators “the incentive and ability to
favor their affiliated programmers” and “[to] make it more difficult for
noncable-affiliated programmers to secure carriage on cable systems.” 1992
Cable Act, §2(a)(5). For example, a vertically integrated cable operator may
“give its affiliated programmer a more desirable channel position than
another programmer, or even refuse to carry other programmers.” Senate
Report at 25. By engaging in that type of discrimination, a cable operator
could give an affiliated programmer an unfair advantage in terms of attracting
viewers and competing for advertising revenues and programming rights.
To redress this problem, Congress crafted a statute that targets
discrimination against unaffiliated programmers where that discrimination is
motivated by considerations of affiliation and harms the ability of rival
programmers to compete. The 1992 Cable Act added a new section 616 to
the Communications Act, which (inter alia) directs the FCC to adopt rules to
prevent any MVPD from (a) “discriminating” in the selection, terms, or
conditions of carriage “on the basis of affiliation or non-affiliation” of
programming vendors where (b) the effect of such discrimination is “to
unreasonably restrain” the ability of an unaffiliated vendor to “compete
fairly.” 47 U.S.C. §536(a)(3); see also 47 C.F.R. §76.1301(c) (corresponding
4


FCC rule). The legislative history makes clear that section 616 was intended
to supplement—rather than duplicate—the antitrust laws. As the House
Report explains, “[t]his legislation provides new FCC remedies and does not
amend, and is not intended to amend, existing antitrust laws. All antitrust and
other remedies that can be pursued under current law by video programming
vendors are unaffected by this section.” H.R. Rep. No. 102-628, at 111
(1992) (“House Report”).
Under the FCC’s rules implementing section 616, the complainant
bears the burden to make a prima facie showing that the MVPD has engaged
in behavior that violates section 616. Implementation of Sections 12 and 19,
9 FCC Rcd 2642, 2654 (1993) (¶29) (“1993 Order”). If the complainant
satisfies that burden, the FCC’s Media Bureau must determine whether it can
grant relief on the basis of the existing written record or must refer the matter
to an ALJ for an evidentiary hearing. Id. at 2656 (¶34). If such a hearing is
required, the ALJ issues an initial decision on the merits. Any appeal of that
decision is brought “directly to the Commission”—i.e., to the Commissioners
rather than to the FCC’s Media Bureau staff. Id.
Section 616 directs the FCC to “provide for appropriate penalties and
remedies for violations of this subsection, including carriage.” 47 U.S.C.
§536(a)(5). The agency “determine[s] the appropriate relief for program
5

Material Under Seal Deleted

carriage violations on a case-by-case basis.” 1993 Order, 9 FCC Rcd at 2653
(¶26).

B.

Factual Background

1. Launched in May 2003, Tennis Channel is a national cable sports
network that airs tennis-related programming. Tennis Channel is distributed
by 130 different MVPDs to approximately
subscribers. Order,
¶8 (J.A.1388).
Comcast is the largest MVPD in the United States. Id., ¶9 (J.A.1389).
With 23 million subscribers, it accounts for 24 percent of all pay-TV
subscribers in the nation. Id., ¶¶9, 87 & n.330 (J.A.1389, 1419, 1427).
Comcast offers cable television programming to its subscribers in several
different “tiers” (i.e., packages of programming services) at different prices.
Core programming is contained in Comcast’s “Expanded Basic” tier, or its
digital counterpart, the “Digital Starter” tier. Together, these tiers are
received by approximately
of Comcast customers, or

viewers. The more expensive “Digital Preferred” tier, subscribed to
by
of Comcast’s customers—about
viewers—
provides the customer with access to additional networks. Lastly, Comcast’s
“Sports and Entertainment Package” (“Sports Tier”) consists of a package of
sports-related networks available to Comcast subscribers for an additional fee
6

Material Under Seal Deleted

of about $5-8 per month. Only about
of Comcast’s customers—
approximately
viewers—subscribe to the Sports Tier. Order,
¶¶12, 47 (J.A.1390, 1403); The Tennis Channel, Inc. v. Comcast Cable
Commc’ns, LLC, 26 FCC Rcd 17160, ¶¶11-14 (2011) (ALJ’s Initial Decision)
(“ID”) (J.A.1323).
Tennis Channel is not affiliated with Comcast. Order, ¶1 (J.A.1386).
However, Comcast owns controlling interests in two national sports
1
networks, Golf Channel and Versus, and minority equity interests in a
number of others. Golf Channel airs programming that is devoted to golf;
Versus carries programs involving a wide variety of sports. Id., ¶¶9-11
(J.A.1389). Comcast places every one of its affiliated sports networks on a
programming tier that reaches a broader audience than the Sports Tier. See
id., ¶47 (J.A.1403).
2. Comcast began carrying Tennis Channel in 2005 pursuant to a 15-
year carriage agreement. Order, ¶12 (J.A.1390). Although the parties’
carriage agreement generally recognizes Comcast’s discretion to determine
the tier (or tiers) upon which it will carry Tennis Channel, see ID, ¶16

1 Consistent with the Commission’s Order, we refer to the network (now
known as NBC Sports Network) as Versus.
7

Material Under Seal Deleted

(J.A.1325), Comcast has never disputed that it must exercise that discretion in
accordance with section 616’s nondiscrimination rule.
Starting in 2005 (and continuing to the present), Comcast has placed
Tennis Channel on its premium Sports Tier on the overwhelming majority of
its cable systems. Order, ¶¶12, 68 (J.A.1390, 1411); see also ID, ¶14
(J.A.1323). As a result, Tennis Channel is available to only approximately
of Comcast’s subscribers, while Comcast’s affiliates (Golf
Channel and Versus) are offered on Comcast’s Expanded Basic and Digital
Starter tiers, and therefore reach
of Comcast customers. Id.
In early 2009, citing recent viewership growth and programming
improvements, Tennis Channel asked Comcast to increase its distribution by
moving it to a tier with broader distribution than the Sports Tier. At that time
(as now), Comcast carried Golf Channel and Versus on its broadly distributed
Expanded Basic and Digital Starter tiers. Tennis Channel’s Chairman and
CEO (Ken Solomon) informed Comcast that, since Tennis Channel’s launch
in 2003, the network had added the capacity to broadcast in High Definition,
obtained rights to broadcast a number of important tennis tournaments,
including significant portions of all four Grand Slam tournaments, and signed
celebrity on-air commentators, such as Jimmy Connors and John McEnroe.
With these improvements, Mr. Solomon explained that Tennis Channel’s
8

Material Under Seal Deleted

ratings and distribution had increased significantly; indeed, he noted more
than two-thirds of Tennis Channel’s distributors offer the network on a non-
premium tier. ID, ¶19 & n.65 (J.A.1326); TC Exh. 14 (Solomon) at 3, 6-9
(J.A.1028, 1031-34).
Comcast Vice-President Madison Bond told Mr. Solomon that
Comcast would broaden Tennis Channel’s distribution only if Tennis
Channel offered Comcast a financial “incentive.” TC Exh. 14 (Solomon) at
9-10 (J.A.1034-35). In response, Tennis Channel made two alternative
proposals: it would accept (1) a
reduction in the per-subscriber
fees it receives under the parties’ carriage agreement if Comcast carried the
network on its Digital Preferred tier; or (2) a
reduction in its per-
subscriber fees if carried on Comcast’s Digital Starter tier. ID, ¶19
(J.A.1326).
Concerned that Tennis Channel might invoke its legal rights under
section 616 (ID, ¶22 (J.A.1328)), Mr. Bond directed Comcast Vice-President
Jennifer Gaiski (1) to prepare a written analysis of the additional costs to
Comcast of accepting Tennis Channel’s proposals, and (2) to ask Comcast’s
regional representatives whether there was interest in increasing Tennis
Channel’s distribution. Id., ¶20 (J.A.1326-27).
9


Ms. Gaiski’s analysis compared the future license fees that Comcast
would pay under the parties’ carriage agreement with the higher license fees
Comcast would pay under each of Tennis Channel’s proposals. Comcast
Exh. 588 (J.A.713). By her own account, however, Ms. Gaiski did not
consider, let alone attempt to quantify, any benefits to Comcast of moving
Tennis Channel to more widely distributed tiers. Tr. 2437-39 (Gaiski)
(J.A.360-62); Order, ¶77 (J.A.1415). Nor did she attempt to compare the
cost of Tennis Channel’s proposals with the significant costs Comcast incurs
in broadly distributing Golf Channel and Versus. Tr. 2432-33 (Gaiski)
(J.A.358-59).
On June 8, 2009, Ms. Gaiski convened a teleconference with a
Comcast attorney and four regional executives. She asked the regional
representatives—who were already informed of her cost analysis—whether
Comcast subscribers or local cable systems personnel had any interest in
distributing Tennis Channel on a more broadly distributed tier. After
receiving initial negative responses, Ms. Gaiski asked them to consult with
local system personnel to ascertain whether Tennis Channel’s proposals had
generated any interest and report back in “a day or two.” ID, ¶21 (quoting
Comcast Exh. 130 (J.A.1328)); Tr. 2367 (Gaiski) (J.A.354). Rather than
10


waiting for any such report, Comcast rejected Tennis Channel’s proposals the
next day. Order, ¶77 (J.A.1415).

II.

THIS PROCEEDING

A.

The Initial Administrative Proceedings

On January 5, 2010, after providing prior notice to Comcast, Tennis
Channel filed a complaint with the FCC alleging that Comcast had violated
section 616 of the Act and the agency’s implementing rules by granting
preferential treatment to its similarly situated affiliates while continuing to
relegate Tennis Channel to the narrowly distributed Sports Tier. Tennis
Channel Compl. (J.A.15).
In October 2010, the FCC’s Media Bureau determined that the
complaint was timely filed (HDO, ¶¶28-33 (J.A.1308)), and designated the
case for a hearing before an ALJ. Id., ¶¶2, 9, 10 (J.A.1300, 1302). Following
the completion of discovery, the ALJ conducted a six-day hearing at which
the parties presented fact and expert witnesses, and submitted thousands of
documents into evidence. ID, ¶3 (J.A.1320).

B.

The ALJ’s Initial Decision

After weighing the evidence and evaluating the credibility of the
witnesses, the ALJ upheld Tennis Channel’s complaint on December 20,
2011.
11

Material Under Seal Deleted

The ALJ found, among other things, significant circumstantial
evidence that Comcast had engaged in intentional affiliation-based
discrimination. ID, ¶122 (J.A.1370). Relying on precedent applying a
similar analysis, the ALJ concluded that Tennis Channel, Golf Channel, and
Versus are similarly situated because each of the three networks provides
year-round sports programming, has similar ratings, attracts similar types of
viewers, and targets the same advertisers. Id., ¶¶24-49 (J.A.1328-41). The
ALJ also found that, despite these close similarities, Comcast treats Golf
Channel and Versus more favorably than Tennis Channel. Indeed, it was
undisputed that Comcast provides its own affiliates with dramatically wider
distribution—reaching
of Comcast subscribers, while Tennis
Channel is relegated to a programming tier that reaches only about

of subscribers. Id., ¶¶53-54, 60 (J.A.1343, 1346).
The ALJ also found that Comcast’s differential treatment was
impermissibly based upon affiliation. He pointed out that Comcast’s
President Stephen Burke admitted that Comcast treats its affiliated networks
“like siblings as opposed to like strangers” and that affiliates receive a
“different level of scrutiny” from unaffiliated providers. ID, ¶55 (J.A.1344);
TC Exh. 7 at 3 (J.A.743). He noted further that the testimony of Comcast
Vice-President Bond—the Comcast official responsible for determining
12


Tennis Channel’s level of distribution—corroborated Comcast’s “sibling
relationship” with network affiliates. ID, ¶55 (J.A.1344); Tr. 2249 (Bond)
(J.A.332).
Additional record evidence supported the conclusion that Comcast’s
rejection of Tennis Channel’s carriage request in this case was consistent with
a policy of favoring the cable company’s own affiliates. The ALJ found, for
example, that “affiliation by itself generally is sufficient to ensure that a
sports network is widely distributed on Comcast systems,” and that Comcast
places only unaffiliated networks exclusively on its Sports Tier. ID, ¶58
(J.A.1345). By contrast, it was undisputed that “[e]very one of [Comcast’s]
affiliated networks is carried on more widely distributed tiers.” Id. ¶57
(J.A.1345).
The ALJ next determined that Comcast’s “unequal treatment of Tennis
Channel vis-à-vis its sports affiliates has adversely affected the ability of
Tennis Channel to compete fairly in the video programming marketplace.”
Id., ¶81 (J.A.1356). By greatly reducing the network’s distribution,
Comcast’s actions substantially impeded Tennis Channel’s ability to compete
for valuable programming rights, made it more difficult for the network to
sell advertising, and reduced the prices that Tennis Channel is able to charge
its advertisers. Id., ¶¶86-89 (J.A.1357-58).
13


To remedy Comcast’s violation of section 616, the ALJ ordered
Comcast to (1) pay a $375,000 forfeiture, (2) provide Tennis Channel with
equitable treatment vis-à-vis Golf Channel and Versus as to channel
placement, and (3) give Tennis Channel “the same treatment in the terms and
conditions of video program distribution” that it provides to Golf Channel
and Versus. ID, ¶¶117-120 (J.A.1367-69). In imposing this equal-carriage
remedy, the ALJ made clear that Comcast was free to determine “the level of
penetration it chooses to carry the three channels.” Id.

C.

The Commission’s Order


In July 2012, based on its independent review of the extensive
evidentiary record, the Commission substantially affirmed the ALJ’s
decision.
After determining that the complaint was filed within the applicable
statute of limitations (Order, ¶¶28-34 (J.A.1396-99)), the Commission
concluded that the record evidence supported the ALJ’s finding that Comcast
had violated section 616 and the agency’s implementing rule (id., ¶¶39-87
(J.A.1400-19)).
As a threshold matter, the FCC rejected Comcast’s argument that it
must construe section 616 to incorporate an “essential facilities” doctrine
borrowed from antitrust law, thereby limiting the operative effect of the
14


statute to the redress of anticompetitive harms that would already be barred
under the antitrust laws. Id., ¶¶40-43 (J.A.1400-01). The agency explained
that Comcast’s argument was unsupported by the statutory text and that the
legislative history made clear Congress’s intent to “‘provide[] new FCC
remedies’” and “‘not amend . . . existing antitrust laws.’” Id., ¶41 (J.A.1401)
(quoting House Report at 111) (emphasis added). Thus, the Commission
observed, section 616 is not simply “a redundant analogue to antitrust law.”
Id.
Turning to the extensive evidentiary record, the Commission found that
substantial evidence supported the ALJ’s determination that Comcast had
deliberately discriminated against Tennis Channel—while favoring Golf
Channel and Versus—on the basis of affiliation. Id., at ¶¶44-82 & n.138
(J.A.1402-17). The FCC first pointed to “significant circumstantial evidence
that Comcast had engaged in a general practice of favoring affiliates over
nonaffiliates.” Id., ¶45 (J.A.1402). Indeed, the testimony of Comcast’s own
witnesses supported this finding: as the ALJ noted, senior Comcast
executives Stephen Burke and Madison Bond had acknowledged that the
cable operator’s programming affiliates—which are treated like
“sibling[s]”—benefit from “a different level of scrutiny” that Comcast does
not apply to unaffiliated networks like Tennis Channel. Id., ¶46 (J.A.1402).
15

Material Under Seal Deleted

Moreover, the record evidence showed that “Comcast’s carriage of sports
networks tracks the significance of its equity stake.” Id., ¶47 (J.A.1403). For
example, Comcast places only unaffiliated sports networks (including Tennis
Channel) on the narrowly penetrated Sports Tier, while consistently affording
broader carriage to its own affiliates. Id.
The FCC further found that the dramatically less favorable treatment of
Tennis Channel—which reaches only about
of Comcast’s
subscribers, while Golf Channel and Versus reach
—supported a
reasonable inference of intentional affiliation-based discrimination. That was
so because, among other things, (1) the three networks are otherwise similarly
situated, and (2) Comcast had failed to proffer a credible justification for this
differential treatment based on legitimate reasons unrelated to affiliation. Id.,
¶¶68-72 (J.A.1411-12); see also id., ¶¶51-66 (J.A.1404-09).
The FCC specifically found unpersuasive Comcast’s assertion that its
refusal of Tennis Channel’s request for broader carriage was based on a good
faith belief that subscribers lacked interest in the network. The record
evidence showed that, although Comcast had purported to seek feedback
from its regional executives concerning interest in Tennis Channel, it rejected
Tennis Channel’s proposal even before those executives had a reasonable
opportunity to report on their findings. Id., ¶80 (J.A.1416). Nor was
16

Material Under Seal Deleted

Comcast’s claim to have undertaken a genuine cost-benefit analysis
convincing; as the Commission explained, the record showed that Comcast in
fact “made no attempt to analyze benefits” at all. Id., ¶¶77, 79 (J.A.1415).
The FCC further concluded that Comcast’s affiliation-based
discrimination against Tennis Channel (and in favor of Golf Channel and
Versus) unreasonably restrained Tennis Channel’s ability to compete fairly in
the video programming marketplace. Order, ¶¶83-88 (J.A.1417-20). The
agency explained that, by depriving Tennis Channel of the same level of
distribution that it accorded to its own affiliates (Golf Channel and Versus),
Tennis Channel was foreclosed from access to approximately

additional subscribers on Comcast systems alone. Id., ¶83 (J.A.1417); ID,
¶82 (J.A.1356). Comcast’s discriminatory carriage of Tennis Channel
sharply reduced Tennis Channel’s largest source of revenues. Order, ¶84
(J.A.1417).
Furthermore, this competitive harm was magnified by the “ripple
effect” —that is, the fact that “one MVPD’s decision to carry a network at a
specific level of distribution increases the likelihood that another MVPD will
carry that network at the same level of distribution.” Order, ¶73 & n.220
(J.A.1412) (citing record evidence, including, inter alia, testimony of a
Comcast’s executive who acknowledged this effect). As the FCC explained,
17


“[a] major MVPD’s decision to widely distribute a network provides that
network with greater access to subscribers, particularly in major cities, and
additional publicity, which in turn makes broader carriage by other MVPDs
2
more appealing and likely.” Order, ¶73 & n.221 (J.A.1412). Thus, the
record showed, broad carriage on a market leader like Comcast adds
significant value to a network, enhances its brand, and, in turn, encourages
other MVPDs to likewise distribute the network on a broadly distributed
programming tier.
The FCC found that this severe reduction in audience size and revenues
materially affected Tennis Channel’s ability to compete for valuable
programming rights and advertising dollars—while at the same time
providing a competitive advantage to Comcast’s own affiliates. As the FCC
found, national advertisers, which seek the largest audience possible,
generally will not purchase advertisements on networks with fewer than 40
million subscribers. Relegated to the Sports Tier, Tennis Channel’s
subscribership was below that threshold, and it therefore was unable to attract
significant advertising from such advertisers. Indeed, national advertisers

2 See also Tr. 722 (Brooks) (J.A.215) (testifying that “[w]ide distribution
through a major distributor puts you in many major cities” and “gets you a lot
of attention” and “publicity” that “puts pressure on” other distributors in that
area to “carry you as well.”).
18

Material Under Seal Deleted

such as
declined to purchase advertising from Tennis
Channel due to its limited distribution. Order, ¶84 (J.A.1417).
The FCC emphasized that, because Versus “competes directly with
Tennis Channel for programming rights,” it “directly benefits from the
difficulties in acquiring programming rights that Tennis Channel faces as a
consequence of more limited carriage, a detrimental effect that even Comcast
executives have acknowledged.” Id., ¶85 & nn.271, 272 (J.A.1418). Thus,
Tennis Channel’s ability to “compete fairly” was restrained in an
unreasonable manner.
The FCC upheld the remedies ordered by the ALJ, with the exception
of the channel-placement remedy (which the agency found to be
insufficiently supported by the record). Id., ¶3 (J.A.1386). Following a
careful analysis of Comcast’s First Amendment arguments, the agency
concluded that the equal-carriage requirement was appropriate and consistent
with the Constitution. Id., ¶¶88-106 (J.A.1420-27).

STANDARD OF REVIEW

1. Comcast bears a heavy burden to establish that the FCC’s Order is
“arbitrary [and] capricious.” 5 U.S.C. §706(2)(A). “Under this highly
deferential standard of review, the court presumes the validity of agency
action . . . and must affirm unless the Commission failed to consider relevant
19


factors or made a clear error in judgment.” Cellco P’ship v. FCC, 357 F.3d
88, 93-94 (D.C. Cir. 2004) (internal quotations omitted). The Court must
accept the FCC’s factual findings if they are supported by substantial
evidence, even if “‘a plausible alternative interpretation of the evidence
would support a contrary view.’” E.g., Dickson v. Nat’l Trans. Safety Bd.,
639 F.3d 539, 542 (D.C. Cir. 2011) (citation omitted). The Court “‘will
reverse for lack of substantial evidence only when the record is so compelling
that no reasonable factfinder could fail to find to the contrary.’” Highlands
Hosp. Corp. v. NLRB, 508 F.3d 28, 31 (D.C. Cir. 2007) (citation omitted).
2. Review of the Commission’s interpretation of section 616 is
governed by Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984). Under
Chevron, if Congress has not “directly spoken to the precise question at
issue,” id. at 842, “the question for the court is whether the agency’s answer
is based on a permissible construction of the statute.” Id. at 843. In such
circumstances, “Chevron requires a federal court to accept the agency’s
[reasonable] construction of the statute, even if the agency’s reading differs
from what the court believes is the best statutory interpretation.” Nat’l Cable
& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005).
3. “Reviewing courts accord even greater deference to agency
interpretations of agency rules than they do to agency interpretations of
20


ambiguous statutory terms.” Capital Network Sys. v. FCC, 28 F.3d 201, 206
(D.C. Cir. 1994). “The Commission’s interpretation of its own rules is
‘entitled to controlling weight unless it is plainly erroneous or inconsistent
with the regulation.’” Star Wireless LCC v. FCC, 522 F.3d 469, 473 (D.C.
Cir. 2008) (citation omitted).
4. The Court reviews the agency’s disposition of constitutional issues
de novo. Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir. 2004).

SUMMARY OF ARGUMENT

1. The record amply supports the FCC’s conclusion that Comcast
violated section 616 of the Communications Act by intentionally
discriminating against Tennis Channel on the basis of affiliation. Comcast’s
senior officers acknowledged that its affiliated networks enjoy the benefits of
a special “sibling” relationship that entails a “different level of scrutiny” with
respect to carriage decisions, and the evidence disclosed a clear correlation
between the equity interest Comcast holds in a network and the level of
distribution that it provides.
Even more to the point, while Tennis Channel, Golf Channel, and
Versus are similarly situated in all relevant respects (including programming,
audience demographics, targeted advertisers, and ratings), Comcast gives
Golf Channel and Versus dramatically broader distribution than it provides to
21


Tennis Channel. Moreover, Comcast’s proffered justifications for its
differential treatment of the networks—which, it maintained, had nothing to
do with considerations of affiliation—were not credible, and were
outweighed by the overwhelming evidence of intentional discrimination. Far
from impermissibly converting section 616 into a “disparate impact” statute,
the FCC properly examined circumstantial evidence of intentional
discrimination, including, but not limited to, evidence of differential
treatment of similarly situated persons.
2. Neither as a matter of statutory interpretation nor First Amendment
principle is the FCC required to interpret section 616 in a manner that is
cabined by doctrines borrowed from antitrust law, such as the “essential
facilities” doctrine. The statutory text uses inherently ambiguous language—
referring to conduct that “unreasonably restrains” an “unaffiliated . . .
programming vendor[’s]” ability to “compete fairly”—which invests the
agency with substantial discretion to implement the statute it administers in a
reasonable manner. The statute does not refer to “essential facilities,”
“bottleneck” power, or “market power,” and Congress’ decision to apply
section 616 to all MVPDs (including satellite providers that never possessed
bottleneck power) confirms that it did not intend to constrain 616 by the
essential-facilities doctrine. Indeed, the legislative history strongly supports
22

Material Under Seal Deleted

the FCC’s understanding of section 616. That understanding is consistent
with the well-established proposition that, in applying the provisions of the
Communications Act, the FCC is not bound by “the letter of the antitrust
laws.” United States v. FCC, 652 F.3d 72, 88 (D.C. Cir. 1980) (en banc).
The FCC’s conclusion that Comcast unreasonably restrained Tennis
Channel’s ability to compete fairly is also supported by substantial evidence.
By depriving Tennis Channel of the broad distribution platform that
Comcast’s similarly situated affiliates enjoy, the cable operator foreclosed
Tennis Channel from access to approximately
subscribers on
Comcast systems alone. This drastic narrowing of Tennis Channel’s
audience (and its concomitant impact on the network’s revenues) severely
impeded Tennis Channel’s ability to compete against Comcast’s affiliates not
only for the same viewers, but also for the same advertising accounts and
rights to valuable programming.
3. The FCC’s analysis and remedy fully comport with the First
Amendment. The agency’s purpose—to ensure that Comcast does not
leverage its position in a way that unreasonably restrains Tennis Channel’s
ability to compete—is unrelated to the content of expression. The FCC
considered the similarity of programming carried on the three networks only
to determine whether there was circumstantial evidence of affiliation-based
23


discrimination (i.e., whether the three networks compete for the same
audiences, advertisers, and programming rights). There is no plausible
suggestion that it did so to disfavor any messages or ideas. The order is
therefore subject to intermediate—not strict—First Amendment scrutiny.
The Commission’s equal-carriage remedy satisfies such scrutiny. By
ordering Comcast to cease its affiliation-based discrimination against Tennis
Channel, the remedy directly advances the same important governmental
interests the Supreme Court and this Court have recognized in rejecting other
First Amendment challenges to regulation of the cable industry: promoting
fair competition and fostering diversity of information sources in the video
programming marketplace. And the remedy is narrowly tailored so as to
avoid burdening more speech than necessary: it leaves Comcast free to
determine how it will comply with the equal-carriage requirement (for
example, by carrying all three networks on an intermediate programming
tier).
4. Finally, the FCC reasonably interpreted its own rule in determining
that Tennis Channel’s complaint was timely filed. It is undisputed that
Tennis Channel filed its complaint within one year of both the date it notified
Comcast of its intent to file a complaint and the date of the allegedly
discriminatory conduct, i.e., Comcast’s refusal in June 2009 to give Tennis
24

Material Under Seal Deleted

Channel broader carriage. The FCC’s ruling comports with both the text of
the agency’s statute of limitations rule and prior agency interpretations of that
rule involving Comcast.

ARGUMENT

I.

THE COMMISSION ACTED WELL WITHIN ITS
DISCRETION IN CONCLUDING THAT COMCAST
VIOLATED SECTION 616.

The Commission’s conclusion that Comcast violated section 616 is
based on a permissible reading of the Communications Act and is supported
by substantial evidence.

A.

The FCC Reasonably Determined That Comcast
Discriminated Against Tennis Channel On The Basis
Of Affiliation.

1.

The FCC’s Finding Of Affiliation-Based
Discrimination Is Supported By Substantial
Evidence.

It is undisputed that Comcast gives Tennis Channel dramatically
narrower distribution than it provides to its own affiliates, Golf Channel and
Versus: Comcast generally carries Tennis Channel on the Sports Tier, which
is available to only the
of Comcast’s customers willing to pay
an extra fee. Order, ¶68 (J.A.1411). By contrast, Comcast carries Golf
Channel and Versus on broadly distributed tiers available to
of
Comcast customers for which no additional fee is required. Id. In
determining that this difference in treatment was “on the basis of affiliation or
25


non-affiliation,” 47 U.S.C. §536(a)(3), the FCC relied on, inter alia, evidence
showing that (1) Comcast engaged in a general pattern of favoring affiliated
networks over unaffiliated networks; (2) Comcast’s dramatically less
favorable carriage of Tennis Channel (compared with its own affiliates) was
not attributable to any relevant differences between the three networks, which
are similarly situated; and (3) Comcast’s testimony offering purportedly
legitimate reasons for this differential treatment was not credible. Each of
these findings is supported by substantial record evidence, and each supports
a reasonable inference of intentional discrimination on the basis of affiliation.
a.

Comcast Engaged In A Pattern Of
Favoring Its Affiliates.

Substantial record evidence shows that Comcast engaged in a “general
practice of favoring affiliates over non-affiliates.” Order, ¶45 (J.A.1402).
Senior Comcast executives Stephen Burke and Madison Bond acknowledged
the “sibling” relationship that Comcast gives to its affiliated networks—a
special relationship that, as Mr. Burke conceded, entails “a different level of
26

Material Under Seal Deleted

scrutiny” from that provided to non-affiliates like Tennis Channel. Id., ¶46
3
(J.A.1402); see also TC Exh 7 at 3 (J.A.743); Tr. 2249 (Bond) (J.A.332).
The FCC had ample basis for concluding that this general practice of
favoring affiliated networks over non-affiliates extended to Comcast’s
carriage decisions. Order, ¶¶45-49 (J.A.1402-04). As the agency explained,
the record shows a clear correlation between the level of distribution Comcast
gives to a sports network and Comcast’s equity interest (if any) in that
network. For example, Comcast distributes its two majority-owned sports
networks, Golf Channel and Versus, on broadly distributed tiers reaching
approximately
of Comcast customers; it carries sports networks
in which it has a minority or indirect ownership interest (e.g., NHL Network,
MLB Network, and NBA Network) on an intermediate tier reaching

3 There is no merit to Comcast’s suggestion that, in relying on this
evidence, the FCC acted inconsistently with its decision to exclude the same
testimony from Mr. Burke in an earlier case. See Comcast Br. 37 (citing
Herring Broad., Inc. d/b/a WealthTV v. Time Warner Cable, Inc., 26 FCC
Rcd 8971 (2001)). The Commission explained that the ALJ refused to admit
into evidence Mr. Burke’s testimony in the earlier case because the
complainant there had improperly attempted to introduce it without laying a
foundation for the evidence, and failed to demonstrate that the testimony “fit
into a pattern of circumstantial evidence” showing discrimination. Order,
n.143 (J.A.1403). By contrast, the record in this proceeding included a sworn
declaration by Mr. Burke acknowledging his prior testimony, and “[t]hat
testimony provide[d] important context” buttressing the circumstantial
evidence of discrimination in this case. Id.; see TC Exh. 19 (att. 2)
(J.A.1163).
27

Material Under Seal Deleted

approximately
of its customers; and it relegates only unaffiliated
sports networks, such as Tennis Channel, to the Sports Tier (which reaches
approximately
of its customer base). Id., ¶¶12, 47 (J.A.1390,
1403).
Moreover, the record shows that Comcast increases a network’s
distribution whenever it acquires an ownership interest in that network. For
example, Comcast promptly repositioned the NHL Network from the Sports
Tier to Digital Preferred when it became a partial owner of the network. And
when Comcast obtained equity in the MLB network, it placed that network on
the Digital Preferred tier instead of the Sports Tier, as it had originally
planned. Id., ¶48 (J.A.1403).
Comcast does not dispute that it carries every one of its affiliated sports
networks on tiers that reach a much broader audience than the Sports Tier, but
asserts that its carriage decisions as to those networks were based upon
legitimate reasons unrelated to each network’s affiliation. See Comcast Br.
37. The FCC reasonably concluded, however, see Order, ¶¶48-49 (J.A.1403-
04), that Comcast’s assertion that it does not consider affiliation in making
carriage decisions was implausible given the shortcomings of its affiliated
networks. For example, Comcast carried the affiliated Outdoor Life
Network—the network subsequently renamed Versus—on widely distributed
28


tiers at a time when even Comcast’s own programming chief considered it “a
crappy channel that was dead in the water.” Id., ¶48 (J.A.1403). And in
2010, Comcast planned to launch on the Digital Preferred tier a new network
(U.S. Olympic Network) focusing on programming concerning the Olympic
games, even though that network had not even secured the rights to broadcast
any of those games. Id., ¶48 (J.A.1403); Tr. 2188-89 (Bond) (J.A.324-25).
The FCC’s conclusion was thus well supported by the record.
b.

Tennis Channel Is Similarly Situated To
Comcast’s Affiliates.

Comcast’s starkly differential treatment of Tennis Channel and its own
affiliated networks could not be explained by any relevant differences
between the three networks. To the contrary, substantial record evidence
showed that Tennis Channel, Versus, and Golf Channel are similarly situated.
Each broadcasts sports programming (including sporting events); each has
similar audience demographics in terms of age, income, and gender; each
targets or serves the same advertisers; and each receives remarkably similar
ratings. See Order, ¶¶51-68 (J.A.1404-11).
Comcast largely ignores the FCC’s factual findings concerning these
similarities and the evidence that supports them. Instead, it contends that
certain findings “conflict” with snippets of contrary evidence proffered by
Comcast. Comcast Br. 38. But the Commission detailed its reasons for not
29

Material Under Seal Deleted

accepting that evidence and explained why the record—viewed as a whole—
overwhelmingly supported its finding of affiliation-based discrimination.
See Order, ¶¶56-67 (J.A.1405-10); see also Thompson Med. Co. v. FTC, 791
F.2d 189, 196 (D.C. Cir. 1986) (Court’s role “is not to reweigh the evidence
de novo,” but simply “to determine if the Commission’s finding is supported
by substantial evidence on the record as a whole.”).
For example, the agency explained that Comcast failed to show that
Tennis Channel’s programming is less attractive to subscribers than the
programming of Golf Channel and Versus. Order, ¶59 (J.A.1406). It also
found that the similarities between the three networks in terms of
programming far outweigh any differences. Id., ¶¶52, 65 (J.A.1404, 1409).
And it explained that the evidence cited by Comcast to show that subscribers
value Golf Channel and Versus more than Tennis Channel (such as
programming expenditures) was outweighed by more persuasive evidence
demonstrating that the three networks have “almost identical ratings.” Id.,
4
¶¶55, 61-62 (J.A.1405, 1407).

4 The FCC reasonably rejected Comcast’s claim (Br. 38) that MVPDs find
ratings unimportant. Indeed, Comcast Vice-President Bond testified that he
considered network ratings in making carriage decisions for Comcast. Tr. at
2201 (Bond) (J.A.326); see also Order, ¶62 (J.A.1407) (“Comcast itself
relied upon ratings

).
30

Material Under Seal Deleted

c.

The Commission Reasonably Rejected
Comcast’s Excuses.

Finally, the Commission reasonably rejected as pretextual Comcast’s
testimony concerning its purportedly legitimate reasons for its differential
treatment of Tennis Channel.
The FCC had ample basis for concluding that Comcast’s refusal to give
Tennis Channel broader distribution was not based on a good faith cost-
benefit analysis. See Order, ¶¶76-82 (J.A.1414-17). The Comcast executive
who performed the analysis admitted that she did not prepare any analysis of
what Comcast might gain by moving Tennis Channel to a more widely
distributed tier. Id., ¶77 (J.A.1415); see also Tr. 2439 (Gaiski) (J.A.362). A
“cost-benefit” analysis that does not even consider possible benefits is an
oxymoron, and Comcast cannot overcome the serious flaws in its analysis
simply by asserting—without any support in the record—that there were no
benefits to making Tennis Channel (an established network with strong
audience appeal) more widely available. See Comcast Br. 14, 31. Moreover,
Comcast ignores undisputed evidence that it “would have paid substantially
less to carry Tennis Channel broadly than it did to carry Golf Channel and
Versus broadly.” Order, ¶78 (J.A.1415). For example, in 2010, Comcast’s
costs of carrying Golf Channel and Versus were

, respectively, whereas its costs of carrying Tennis Channel at the
31

Material Under Seal Deleted

same level of distribution would have been only
. Id. Thus,
Comcast subjected Tennis Channel to a “cost-benefit” test for carriage that it
concededly did not even apply to its own affiliates.
The Commission also had good reason to find unpersuasive Comcast’s
attempt to justify its carriage decision on the basis of its poll of regional
executives. See Comcast Br. 31-32; Order, ¶¶80-81 (J.A.1416). Although
Comcast undertook the formality of asking its regional executives whether
there was any subscriber interest in Tennis Channel, it rejected Tennis
Channel’s carriage proposal even before those executives had an adequate
opportunity to respond. Order, ¶80 (J.A.1416). Moreover, “Comcast had
earlier overridden regional executives’ decisions to carry Tennis Channel
more broadly,” thereby sending the unmistakable signal that Comcast “did
not favor broad carriage of Tennis Channel.” Id.
The FCC also acted within its discretion in rejecting Comcast’s claim
that the carriage decisions of other MVPDs established that Comcast did not
engage in affiliation-based discrimination. Id., ¶¶70-75 (J.A.1411-14). In
fact, those carriage decisions supported the opposite inference. Relying upon
data derived from Comcast’s own economic expert, the FCC explained that
Comcast carries Tennis Channel at
the average “penetration
rate” (i.e., the percentage of an MVPD’s total subscribers) of other MVPDs;
32

Material Under Seal Deleted

at the same time, it carries Golf Channel and Versus at penetration rates that
are
, respectively,
than the average of other MVPDs. Id., ¶72 (J.A.1412). The FCC fully
considered Comcast’s evidence concerning the carriage decisions and data of
other MVPDs (including individual MVPDs and subcategories of MVPDs),
see Comcast Br. 33-35, but reasonably concluded that it was more
“appropriate to view the market as a whole, and include in the comparison
[all] MVPDs, [including those] that Comcast sees as its chief competitors,”
i.e., DISH and DirecTV. Order, ¶71 (J.A.1411). See Consolo v. FMC, 383
U.S. 607, 620 (1966) (“[T]he possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s
finding from being supported by substantial evidence.”).
Comcast contends that the FCC abused its discretion by including
DISH and DirecTV in the overall industry penetration figures because those
5
MVPDs have a small equity interest in Tennis Channel. Comcast Br. 34-35.
But the Commission fully explained its reasons for doing so and, in any
event, made clear that its conclusion would not have changed even if it had
excluded consideration of the two satellite providers. Order, ¶75 (J.A.1414).

5 See TC Exh. 14 (Solomon) at 5 (J.A.1030) (DIRECTV and the Dish
Network have equity shares in Tennis Channel of approximately

, respectively).
33


As an initial matter, the agency pointed out that ignoring the carriage
decisions of those providers would not make sense because DirecTV and
DISH are the second and third largest MVPDs in the nation and the closest
rivals to Comcast for purposes of examining circumstantial evidence of
affiliation-based discrimination. Id., ¶74 & n.218 (J.A.1413, 1412).
Moreover, as the agency found (and Comcast does not even attempt to
refute), the record showed that the equity interests of those satellite providers
played no role in the level of carriage they gave to Tennis Channel. Id., ¶73
& n.218 (J.A.1412); see also Tr. 506-08 (Solomon) (J.A.201-03) (testifying
that level of carriage was determined for both DirecTV and DISH without
regard to considerations of affiliation). Just as the Commission did not
simply assume that Comcast’s equity interest necessarily meant that it
discriminated in favor its affiliated networks, so too the Commission did not
simply assume that DirecTV or DISH discriminated in favor of Tennis
Channel.
In any event, the Commission explained that, even if it excluded
consideration of how other MVPDs treated Tennis Channel, there was
abundant independent evidence supporting its conclusion that Comcast had
discriminated against Tennis Channel on the basis of affiliation (including,
for example, “the evidence that Comcast treats affiliates like ‘siblings’ and
34


non-affiliates like ‘strangers,’” as well as Comcast’s failure “to engage in any
actual cost-benefit analysis.”). Id., ¶75 (J.A.1414). Thus, Comcast’s
criticism of the FCC’s metric is ultimately irrelevant to the agency’s
conclusion.
To be sure, the FCC recognized that other MVPDs generally carry Golf
Channel and Versus more broadly than Tennis Channel. Id., ¶73 (J.A.1412).
In light of “Comcast’s substantial market share and the fact that other
MVPDs tend to treat Tennis Channel better and Golf Channel and Versus
worse than Comcast,” however, the agency concluded that “this difference in
carriage is best explained by the ripple effect.” Id.
Comcast misses the point in contending that the ripple effect rests on
an “irrational” theory of “lemming”-like action under which one MVPD is
presumed to “blindly follow” even “economically unsound” decisions of
another MVPD. Comcast Br. 35. To the contrary, the ripple effect—which
Comcast’s own executives acknowledged—reflects the common-sense
proposition that broad carriage on a market leader like Comcast greatly
enhances a network’s brand and attractiveness, thereby encouraging other
MVPDs to likewise distribute the network broadly. See pp. 17-18, supra.
Because Golf Channel and Versus (but not Tennis Channel) benefit from a
prime position on Comcast’s huge distribution platform, they are able to
35

Material Under Seal Deleted

enhance their brands and attractiveness to other programming distributors in a
way that Tennis Channel is not. See n.2, supra. Thus, it is unsurprising that
other MVPDs would afford those Comcast-affiliated networks broader
carriage than otherwise would be the case if Comcast had not granted them
dramatically preferential treatment (over Tennis Channel) to begin with.
Comcast’s attempt to dismiss the ripple effect is particularly
unpersuasive in light of its own actions. Comcast itself used the term “ripple
effect” to express its concern that the repositioning of


. Order, ¶73 (J.A.1412); TC Exh. 38 (J.A.1172); Tr. 1901-04 (Rigdon)
(J.A.246-49). And Comcast’s Vice-President Gregory Rigdon, who replaced
Mr. Bond as the official responsible for Comcast’s carriage decisions,
expressly acknowledged this effect. Tr. 1903-04 (Rigdon) (J.A.248-249); see
also TC Exh. 16, at 41, 62-63, 70 (Singer) (J.A.1120, 1141-42, 1149)
(confirming ripple effect based on knowledge as an expert in competition
economics); Tr. 722 (Brooks) (J.A.215) (same, based on “own experience in
this field”); TC Exh. 14, at 17 (Solomon) (J.A.1402) (“MVPDs often inquire
about Tennis Channel’s level of carriage on Comcast” and “often follow
Comcast’s lead.”).
36


2.

The FCC’s Finding Of Affiliation-Based
Discrimination Is Firmly Grounded In The
Statutory Text And Legislative History, And Is
Consistent With Discrimination Law In General.

Unable to grapple with the substantial evidence supporting the
Commission’s finding of affiliation-based discrimination, Comcast claims
that the agency impermissibly transformed section 616 from a discriminatory
treatment provision into a disparate impact provision. See Comcast Br. 29.
Comcast misconstrues the FCC’s analysis. As the agency explained,
comparing a defendant’s treatment of similarly situated persons as
circumstantial evidence of intentional discrimination is a “hallmark of
discrimination law.” Order, ¶95 & n.305 (J.A.1422, 1423) (citing cases;
emphasis added); accord ID, ¶105 (J.A.1364). The FCC’s analysis in this
case was consistent with that approach, and appropriately looked to evidence
(including circumstantial evidence) of intentional discrimination on the basis
of affiliation. Id.
In this regard, the Commission’s analysis comports with legislative
history showing that Congress intended the FCC, in resolving program
discrimination complaints, to be “guided” by the “extensive body of law . . .
addressing discrimination in normal business practices.” House Report at
110. Under that body of law, plaintiffs in discrimination cases can (and do)
establish intentional discrimination through a showing of disparate treatment
37


of similarly situated persons. See, e.g., Alliotta v. Bair, 614 F.3d 556, 561
(D.C. Cir. 2010). Moreover, it is well-established that the plaintiff in a
discrimination case is not required “to submit direct evidence of
discriminatory intent.” United States Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 715 n.3 (1983). Rather, it may establish discriminatory
intent through circumstantial evidence, such as evidence that the similarly
situated persons have been treated differently, see Palmer v. Shultz, 814 F.2d
84, 115 n.23 (D.C. Cir. 1987), and that “defendant’s explanation [of
nondiscrimination] is unworthy of credence.” Desert Place, Inc. v. Costa,
539 U.S. 90, 100 (2003).
Comcast thus confuses (a) the Commission’s analysis of differential
treatment of similarly situated networks as circumstantial evidence
supporting an inference of intentional discrimination with (b) an analysis—
which the Commission did not undertake—that exclusively focuses on
disparate impact of actions rather than disparate treatment. Comcast Br. 20.
Contrary to Comcast’s assertions, the Commission clearly required evidence
of intentional discrimination. See Order, n.138 (J.A.1402) (“Section 616
does require a showing of intentional or deliberate discrimination. We note,
however, that this showing can be made via the use of either direct or
circumstantial evidence of discrimination.”); see also id., ¶95 (J.A.1422).
38


Indeed, after finding that Comcast treated a similarly situated network
differently, it examined additional evidence that Comcast discriminates on
the basis of affiliation (including Comcast’s admissions about the “different
level of scrutiny” “sibling[]” networks receive, and the consistent correlation
between affiliation and broad carriage on Comcast cable systems). Order,
6
¶¶69-87 & n.306 (J.A.1411-19, 1423).

B.

The Commission Reasonably Construed And Applied
The Unreasonable Restraint Standard.

Section 616 forbids “a multichannel video programming distributor”
from “unreasonably restrain[ing] the ability of an unaffiliated video
programming vendor to compete fairly by discriminating in video
programming distribution on the basis of affiliation or nonaffiliation.” 47
U.S.C §536(a)(3). Here, the FCC found that Comcast unreasonably
restrained Tennis Channel’s ability to compete fairly in various ways,
including greatly diminishing its revenues and, in turn, harming its ability to
compete for the same advertising accounts and programming rights sought by
Comcast’s favored affiliates. That holding is based on a reasonable

6 For the same reasons, Comcast is wrong in contending (Br. 28) that the FCC
applied a discrimination standard indistinguishable from that applied in cases
involving claims of discrimination by common carriers under 47 U.S.C.
§202(a).
39


construction of the ambiguous terms of the Communications Act and is
supported by substantial evidence.
1.

The FCC Reasonably Interpreted The
Unreasonable Restraint Standard Not To
Incorporate Antitrust Principles.

Comcast’s primary attempt to rebut the Commission’s findings is to
claim that, as a matter of law, the Commission had no discretion other than to
apply principles borrowed from the antitrust laws to determine whether
Comcast violated section 616 of the Communications Act. Comcast argues
that by prohibiting only discrimination that “unreasonably restrain[s] the
ability of an unaffiliated programming vendor to compete fairly,” Congress
7
evinced a clear intent to borrow from the “essential-facilities doctrine” that
some courts have applied under the antitrust laws. Comcast Br. 20-25.
According to Comcast, this deprived the Commission of discretion to apply
any other standard. Id.
“[T]he short answer” to Comcast’s argument “is that Congress did not
write the statute that way.” Corley v. United States, 129 S. Ct. 1558, 1567

7 That doctrine holds that a monopolist must share any “essential facility” it
operates that is needed by competitors. See, e.g., 3B Areeda & Hovenkamp,
ANTITRUST LAW ¶ 771, at 192-193 (3d ed. 2008). The Supreme Court has
acknowledged “the ‘essential facilities’ doctrine crafted by some lower
courts,” but has never itself “recognized such a doctrine.” Verizon
Commc’ns, Inc. v. Law Offices of Curtis V. Trinko, LLP
, 540 U.S. 398, 410-
11 (2004).
40


(2009) (internal quotation marks omitted). If Congress wanted to bind the
Commission to apply antitrust law, it easily could have done so in the text of
section 616. For instance, given that essential-facilities cases predated the
1992 Cable Act, Congress could have referenced that doctrine. But the text
of section 616 does no such thing. See Cablevision Sys. Corp. v. FCC, 649
F.3d 695, 704 (D.C. Cir. 2011) (deferring to FCC’s reasonable construction
of the Communications Act “if Congress has not unambiguously foreclosed
the agency’s construction”).
As the Commission explained, section 616—a provision designed to
promote not only competition but also diversity of information sources in the
MVPD market (see Order, ¶99 (J.A.1424))—does not “speak in terms of
‘access to a necessary service’” nor does it otherwise make any reference to
essential facilities or any other antitrust doctrine. Id., ¶¶40-41 (J.A.1400-01).
By using inherently ambiguous statutory language—“unreasonably restrain”
an unaffiliated programmer’s ability to “compete fairly”—and by directing
the FCC to implement and enforce section 616, Congress delegated authority
to the agency to delineate the contours of that statutory obligation in a
reasonable fashion. See, e.g., Capital Network Sys., 28 F.3d at 204 (because
“‘reasonable[]’ and ‘unreasonable’ are ambiguous statutory terms, this court
owes substantial deference to the interpretation the Commission accords
41


them.”) (citing Chevron, 467 U.S. at 837); NCTA Br. 17 (acknowledging that
the word “unfair” is “‘inherently ambiguous’”) (quoting Cablevision, 649
F.3d at 722); see also AT&T v. Iowa Util. Bd., 525 U.S. 366, 397 (1999)
(“Congress is well aware that the ambiguities it chooses to produce in a
8
statute will be resolved by the implementing agency.”).
The Commission’s conclusion that section 616 has meaning
independent of the antitrust laws is consistent with the case law. It is well
established that, in interpreting and applying provisions of the
Communications Act that promote competition, the FCC is not cabined by
“the letter of the antitrust laws.” United States v. FCC, 652 F.3d 72, 88 (D.C.
Cir. 1980 (en banc); see also Turner Broad. Sys v. FCC, 520 U.S. 180, 192,
194 (1997) (“Turner II”) (FCC is not compelled to interpret Communications
Act provision prohibiting anticompetitive behavior in a manner that reaches
only conduct that “rises to the level of an antitrust violation”); Goldwasser v.
Ameritech Corp., 222 F.3d 390, 399 (7th Cir. 2000) (rejecting argument that a
Communications Act provision imposes duties that are “coterminous with the

8 Comcast is unable to avoid routine application of Chevron deference by
resting on the First Amendment. See Cablevision, 649 F.3d at 709 (“we do
not abandon Chevron deference at the mere mention of a possible
constitutional problem.”) (citation omitted). Because Comcast’s First
Amendment arguments lack merit (see Point II, infra), Chevron applies with
full force.
42


duty of a monopolist to refrain from exclusionary practices.”). If Congress
wanted to vary that long-held understanding, it could have done so, but
9
nothing in the text of section 616 establishes that it did so here.
To the contrary, the statutory text confirms the reasonableness of the
FCC’s interpretation. By its terms, section 616 applies to all “multichannel
video programming distributors,” not just those cable companies with the
kind of bottleneck power to which the essential-facilities doctrine would
apply. Order, ¶40 & n.129 (J.A.1400). Congress’s decision to extend section
616’s prohibitions to satellite providers and other MVPDs that have never
possessed bottleneck power would be inexplicable if that provision were
intended to reach only those entities controlling essential bottleneck facilities.

9 When Congress wishes to bind the Commission to antitrust concepts, it
does so explicitly. For example, section 613(f) of the Communications Act
requires the FCC when regulating the total number of subscribers served by a
cable operator to “take particular account of the market structure . . .
including the nature and market power of the local franchise.” 47 U.S.C.
§533(f)(2)(C) (emphasis added). Section 616, by contrast, contains no such
language unambiguously directing the Commission to incorporate antitrust
principles into its analysis of competition. For this reason, amicus National
Cable & Telecommunications Association’s reliance on Time Warner
Entertainment Co. v. FCC
, 240 F.3d 1126 (D.C. Cir. 2001), and Comcast
Corp. v. FCC
, 579 F.3d 1 (2009), is misplaced. See NCTA Br. 18-19
(contending that FCC failed to adequately address Comcast’s alleged lack of
market power). Those cases addressed FCC regulations promulgated under
section 613(f)—the provision that, unlike section 616, expressly requires
consideration of market power as part of the agency’s analysis. See Time
Warner
, 240 F.3d at 1133-1134; Comcast, 579 F.3d at 3; 47 U.S.C.
§533(f)(2)(C).
43


By contrast, Congress has specifically limited other provisions of the
Communications Act to cable operators and their affiliates. See, e.g., 47
U.S.C. §§534-535 (“must-carry” provisions).
The legislative history also provides strong support for the FCC’s
reading of section 616. The House Report accompanying that provision
makes clear that Congress’ intention was “not to amend existing antitrust
laws” but rather to “provide[] new FCC remedies.” House Report at 111
(emphasis added). And in discussing the competition-enhancing provisions
of the 1992 Cable Act more generally, the Report underscored that
“traditional antitrust analysis has not been, and should not be, the sole
measure of concentration in media industries. . . . The Committee believes
that concentration of media presents unique problems that must be considered
by the [Federal Communications] Commission.” Id. at 42. Under Comcast’s
cramped interpretation, section 616 would proscribe only conduct that already
is barred by the antitrust laws, and thus “would frustrate Congress’s clear
purpose to grant the Commission new authority to address concerns specific
44


10
to MVPDs and affiliated programming.” Order, ¶41 (J.A.1401). Moreover,
by relegating section 616 to “a redundant analogue to antitrust law,” id.,
Comcast’s interpretation violates “one of the most basic interpretative
canons, that a statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous, void or
insignificant.” Friends of Blackwater v. Salazar, 691 F.3d 428, 447 (D.C.
Cir. 2012) (citation omitted). In the guise of interpreting section 616 in
accordance with “settled background legal principles” (Comcast Br. 13),
Comcast would effectively render that section a nullity.
Asserting that vertical integration “is often pro-competitive and can
enhance efficiency,” Comcast contends that the FCC’s application of section
616 in this case impermissibly extends to “reasonable” restraints on
competition. Comcast Br. 24 (emphasis omitted). Comcast has
misinterpreted the FCC’s Order. The Order does not “permit[] [s]ection 616
to be satisfied by any ‘restraining effect’ on competition—whether reasonable
or not.” Id. at 26 (emphasis omitted). Comcast never argued, and the record

10 The same problem arises even if, as Comcast contends, section 616 were
“narrowe[r]” than section 1 of the Sherman Act. See Comcast Br. 23
(emphasis omitted). Whether section 616 is narrower than that provision or
coterminous with it, it would serve no independent function under Comcast’s
reading of the statute: every section 616 violation already would constitute a
violation of section 1 of the Sherman Act.
45

Material Under Seal Deleted

does not show, that its drastically unfavorable treatment of Tennis Channel
(as compared with its treatment of Golf Channel and Versus) was
“reasonable” because it created enhanced efficiencies or other alleged
positive effects of vertical integration. Rather, as discussed below, the FCC
found that Comcast used its position as the leading distributor of video
programming to give an unfair advantage to its affiliated programmers, while
unfairly excluding Tennis Channel—specifically on the basis of its
unaffiliated status—and thereby restrained its ability to compete in the video
programming marketplace. See Point I.B.2, infra. That conclusion is wholly
consistent with the statutory text.
2.

Substantial Evidence Supports The FCC’s
Conclusion That Comcast Unreasonably
Restrained Tennis Channel’s Ability To
Compete.

Having reasonably rejected Comcast’s argument for narrowing section
616 to reach only violations of the antitrust laws, the FCC found that
Comcast’s discriminatory conduct unreasonably restrained Tennis Channel’s
ability to compete fairly in the video programming marketplace. For
example, by depriving Tennis Channel of the same level of distribution that it
accorded to its own affiliates (Golf Channel and Versus), Comcast foreclosed
Tennis Channel from access to approximately
additional
subscribers on Comcast systems alone. Order, ¶83 (J.A.1417); ID, ¶82
46

Material Under Seal Deleted

(J.A.1356). While Comcast’s own affiliates benefited from access to

of Comcast’s subscribers, Tennis Channel’s placement on the
Sports Tier enabled it to access only about
of those subscribers.
Order, ¶68 (J.A.1411). And, to make matters worse, Tennis Channel’s total
national audience was likely further diminished by the ripple effect of
Comcast’s carriage decisions on other MVPDs. Order, ¶83 (J.A.1417); see
also pp. 17-18, 35-36, supra.
Because Tennis Channel’s license fees are computed on a per-
subscriber basis, even under Comcast’s own figures, this drastic loss of
audience translated into lost revenues of between

over the remaining term of the parties’ carriage agreement. Comcast Exh.
588 (J.A.713). As the FCC found, this severe reduction in audience size and
revenues materially affected Tennis Channel’s ability to compete for valuable
programming rights and advertising dollars—while at the same time
providing a significant competitive advantage to Comcast’s affiliates. Order,
¶¶83-87 (J.A.1417-19). In this regard, the agency explained that Comcast-
affiliate Versus “competes directly with Tennis Channel for programming
rights,” and therefore “directly benefits from the difficulties in acquiring
programming rights that Tennis Channel faces as a consequence of more
limited carriage, a detrimental effect that even Comcast executives have
47

Material Under Seal Deleted

acknowledged.” Id., ¶85 & nn. 271, 272 (J.A.1418). The undisputed record
evidence shows, for example, that Tennis Channel’s limited distribution was
the reason the network did not secure the rights to broadcast portions of
important sports events such as the

. Id., ¶84 & n.263
(J.A.1417).
Abundant record evidence also supports the FCC’s determination that
Comcast’s discriminatory distribution dramatically reduced the advertising
revenues needed by Tennis Channel to remain competitive in the video
marketplace—and, in particular, to compete with Versus and Golf Channel
for the same advertising accounts. Order, ¶¶84-86 (J.A.1417-19). For
example, Tennis Channel’s Vice-President of Advertising Sales testified that
its limited distribution is “the single most prevalent reason” that advertisers
give for refusing to purchase advertising on the network. Id., ¶84 (J.A.1417);
TC Exh. 15 at 2, 5 (Herman) (J.A.1059, 1062). Relegated to the Sports Tier,
Tennis Channel was unable to reach the minimum 40 million viewer
threshold generally necessary to attract national advertisers. Id., ¶84
(J.A.1417). Thus, prominent advertisers such as

sharply curtailed or simply declined
to place any advertising on the network. Id.
48

Material Under Seal Deleted

Comcast does not challenge any of the factual findings underlying the
FCC’s conclusion that Comcast unreasonably restrained Tennis Channel’s
ability to compete fairly. Instead, it argues that these sorts of competitive
harms must exist in every program carriage case and thus “cannot constitute
an unreasonable restraint” as a matter of law. Comcast Br. 13-14. But the
FCC did not find an unreasonable restraint merely because Tennis Channel
could “secure more viewers and advertising revenue via broader carriage” (id.
at 13). Rather, it explained that the harms caused by Comcast’s
discrimination were “of such a magnitude that they clearly restrain Tennis
Channel’s ability to compete fairly with similarly situated networks.” Order,
¶84 (J.A.1417). Moreover, the severe harms to Tennis Channel were not
limited to its
losses in revenues; they extended to the
exclusionary impact of Comcast’s discrimination (including Tennis
Channel’s diminished ability to compete against Comcast’s favored affiliates
for programming rights and advertising accounts). Those harms are not
present in every case: an MVPD’s conduct in favoring its affiliate will not
always afford that affiliate a competitive advantage in competing for
advertising dollars and programming rights, as the FCC found here.
Comcast further contends that it does not unreasonably restrain Tennis
Channel from competing in the video programming marketplace because it
49

Material Under Seal Deleted

makes the network available to almost all its subscribers on the Sports Tier
for an added fee. As the FCC pointed out, however, the fact that only
approximately
of Comcast subscribers pay that additional fee is
highly probative evidence that Tennis Channel’s placement on the Sports Tier
serves as a significant impediment to the ability of Tennis Channel to attract
those subscribers. Id., ¶87 (J.A.1419).

Equally flawed is Comcast’s claim that Tennis Channel’s ability to
fairly compete could not have been unreasonably restrained because the
network still may reach viewers who subscribe to MVPDs other than
Comcast. There is no basis for immunizing an MVPD from liability under
section 616 where it can point to the willingness of some other MVPD to
carry the complainant’s network in a nondiscriminatory manner. The
statutory text refers to discrimination that “unreasonably restrain[s]” an
unaffiliated network’s ability to compete fairly, 47 U.S.C. §536(a)(3); it does
11
not require complete foreclosure from any alternative means of distribution.

11 Indeed, even the antitrust laws do not require complete foreclosure. See,
e.g., In the Matter of Time Warner Inc., FTC Docket No. C-3709 (Statement
of Chairman Pitofsky, and Comm’rs Steiger & Varney), available at
http://www.ftc.gov/os/1997/02/c3709other.htm (concluding, under Section 5
of the Federal Trade Commission Act and Section 7 of the Clayton Act that
the ability of an MVPD with a 17% market share to exclude unaffiliated
programming rivals from its distribution network could have “critical” effects
on competitive viability).
50



In any event, as Comcast serves nearly a quarter of all pay-TV homes
in the nation, its discriminatory conduct can (and does) have far-reaching
influence in the marketplace. See Order, ¶87 (J.A.1419). Dr. Hal Singer, a
respected competition scholar, testified that control of access to 20 percent of
the market could be competitively significant; Comcast’s market share
significantly exceeds that 20 percent threshold. See TC Exh. 16 at 70 (¶101)
(Singer) (J.A.1149). Thus, ample evidence supported the FCC’s conclusion
that Comcast unreasonably restrained Tennis Channel’s ability to fairly
compete by foreclosing the network from nearly 25 percent of the entire
MVPD market—as well as a significant percentage of subscribers in major
regional markets—while at the same time providing dramatically broader
12
distribution to its affiliated networks. Order, ¶87 (J.A.1419). Indeed, this is
precisely the type of competitive injury that Congress had in mind when
enacting the 1992 Cable Act. See, e.g., House Report at 42 (noting that the
largest cable operator at the time “control[led] access to almost 25 percent of
all U.S. cable subscribers” and this percentage “may be quite significant

12 For similar reasons Comcast is wrong in contending (Br. 29-30) that Tennis
Channel’s ability to fairly compete could not have been unreasonably
restrained because the FCC found it is similarly situated to Versus and Golf
Channel. A network like Tennis Channel may have obtained the viewers,
programming, and advertising sufficient to show it is similarly situated with
the defendant MVPD’s affiliated networks, and yet be unreasonably
restrained in its ability to more effectively compete against those affiliates.
51


depending on the subscriber level needed to launch and sustain a cable
programming service.”) (emphasis added).

II.

THE ORDER

IS CONSISTENT WITH THE FIRST
AMENDMENT.

A.

The Order

Is Subject To Intermediate Scrutiny.
The FCC’s adjudication of Tennis Channel’s complaint and equal-
carriage remedy are content-neutral actions that are subject to intermediate
scrutiny under the First Amendment. “Government regulation of expressive
activity is content neutral so long as it is justified without reference to the
content of the regulated speech.” Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989) (emphasis omitted). Thus, governmental action “that serves
purposes unrelated to the content of expression is deemed neutral, even if it
has an incidental effect on some speakers or messages but not others.” Id.
The FCC’s purpose here was to ensure that Comcast does not leverage
its position as the leading distributor of video programming to favor its
affiliated networks—and to discriminate against Tennis Channel, an
unaffiliated network—in a way that unreasonably restrains Tennis Channel’s
ability to fairly compete in the video programming market. That content-
neutral action is designed “to prevent [the] cable operator[] from exploiting
[its] economic power,” by harming fair competition and diversity of
information sources—not to favor or penalize “speech on the basis of the
52


ideas or views expressed.” Turner II, 520 U.S. at 186. It implements a
statute that “regulat[e] cable . . . operators on the basis of the ‘economics of
ownership,’ a characteristic [that is] unrelated to the content of speech.” Time
Warner Entm’t Co. v. FCC, 93 F.3d 957, 977 (D.C. Cir. 1996).
Comcast argues that it was unlawful for the agency to examine whether
Tennis Channel is “similarly situated” with Golf Channel and Versus for
purposes of examining evidence of affiliation-based discrimination.
According to Comcast, this similarly-situated analysis entails a content-based
restriction of speech that triggers “strict scrutiny” and is thus presumptively
unconstitutional. Comcast Br. 43-50. But in front of the ALJ and the Media
Bureau (and before the ALJ concluded, based on substantial record evidence,
that the three networks are similarly situated), Comcast specifically urged the
agency to employ the very similarly-situated analysis that it now argues
violates its First Amendment rights. See, e.g., Comcast Answer ¶¶40-44
(J.A.95-98) (“Absent direct evidence of discriminatory intent, a complainant
may prevail only if it can show both that (a) the defendant treated similarly
situated entities dissimilarly, and (b) the defendant’s non-discriminatory
rationale for such disparate treatment was a mere pretext for discrimination.”)
53


13
(citation omitted; emphasis altered). Only after Comcast lost on the
evidence did its legal theory change.
New Radio v. FCC, 804 F.2d 756, 760 (D.C. Cir. 1986), forbids that
type of “gamesmanship.” In that case, an FCC license applicant presented its
case to an ALJ based on a legal theory that the ALJ subsequently rejected.
Upon further review before the FCC, the applicant argued that its own theory
was “not the proper grounds to begin with,” and—like Comcast here—
presented an entirely different theory of the case. Id. This Court held that the
applicant’s new theory was “effectively waived by [its] failure to raise the
issue before the ALJ.” Id. The same conclusion should apply here.
In any event, Comcast’s argument is meritless. The “principal inquiry
in determining content neutrality . . . is whether the government has adopted a
regulation of speech because of [agreement or] disagreement with the
message it conveys.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642
(1994) (“Turner I”) (quoting Ward, 491 U.S. at 791). The FCC did nothing
of the sort here. Rather, it considered the programming of the three networks

13 Comcast specifically urged the ALJ to scrutinize the content of the three
networks’ programming, pointing to alleged differences between Tennis
Channel and Comcast’s affiliates within various subcategories of sports
programming, such as event (e.g., tournaments) versus non-event
programming. ID, ¶29 (J.A.1331). Comcast also urged consideration of
alleged differences in the “images” projected by the three networks. See id.,
¶¶30-36 (J.A.1331-34).
54


as one consideration (among others) to determine whether there was
circumstantial evidence of affiliation-based discrimination. That analysis
required the agency to consider whether the networks compete for the same
audiences, advertisers, and programming rights. The particular content of
the programming at issue was irrelevant; the only relevant fact was that it was
similar. As shown above, the FCC’s analysis simply tracked the approach of
discrimination law in general, which routinely looks to disparate treatment of
similarly situated persons as circumstantial evidence of intentional
discrimination. See pp. 36-39, supra. “[T]here is absolutely no evidence, nor
even any serious suggestion, that the Commission [acted] to disfavor certain
messages or ideas.” Cablevision, 649 F.3d at 717 (applying intermediate
scrutiny).
Indeed, this Court has recognized that intermediate scrutiny applies
even in those instances where the government’s action “might in a formal
sense be described as content-based.” BellSouth Corp. v. FCC, 144 F.3d 58,
69 (D.C. Cir. 1998). In BellSouth, for example, the Court addressed a
provision of the Communications Act that “define[d] the field of expression
to which it applie[d] by reference to a set of categories” defined by subject-
matter, such as “‘news,’ ‘entertainment,’ and ‘research material.’” Id. In
rejecting a First Amendment challenge, the Court explained that
55


“intermediate scrutiny is appropriate because . . . there is simply no hint that
‘the government has adopted a regulation of speech because of [agreement
or] disagreement with the message it conveys.’” Id. (quoting Turner I, 512
U.S. at 642). The same conclusion applies here. The goal of the FCC’s
Order—“promoting diversity and competition in the video programming
market” (Order, ¶¶99-100 (J.A.1424-25))—“is independent of content and
viewpoint.” BellSouth, 144 F.3d at 69. Intermediate scrutiny therefore
applies.
Comcast accuses the FCC of “conflating content-based rules with
viewpoint-based restrictions.” Comcast Br. 45. But Comcast’s quarrel is
ultimately with the test for content-based regulation of speech enunciated by
the Supreme Court. See Turner I, 512 U.S. at 642; Ward, 491 U.S. at 791
(“The government’s purpose is the controlling consideration. . . .
Government regulation of expressive activity is content neutral so long as it is
justified without reference to the content of the regulated speech”) (citation
and internal quotation marks omitted). In any event, Comcast’s argument is a
red herring: Comcast does not claim (nor could it) that the Order engages in
any sort of viewpoint-based discrimination. And the cases on which it relies
are far afield, as all involved government actions that banned or burdened
speech expressly based on its content and in a manner that raised suspicion
56


that the government’s underlying objective was to restrict speech because of
the ideas or messages it conveyed. See, e.g., Comcast Br. 45 (discussing
14
cases addressing “prohibition[s] of public discussion of an entire topic”).
Finally, the suggestion that any carriage requirement inherently triggers
strict scrutiny because it amounts to “compelled speech” is flatly inconsistent
with Supreme Court precedent. See, e.g., Turner I, 512 U.S. at 653-64 (cable
must-carry rules that compel speech are subject to intermediate scrutiny). In
neither object nor form does the FCC’s Order “suppress, disadvantage, or
impose differential burdens upon speech because of its content.” Id. at 642.

B.

The Order

Satisfies Intermediate Scrutiny.
A content-neutral governmental action will withstand intermediate
scrutiny if it: (1) “advances important governmental interests unrelated to the
suppression of free speech”; and (2) “does not burden substantially more
speech than necessary to further those interests.” Turner II, 520 U.S. at 189
(citation omitted).

14 See, e.g., Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974)
(right-of-reply statute applicable to speech critical of political candidates,
thereby forcing them to publish a counterbalancing message that effectively
would dilute their original message); United States v. Stevens, 130 S. Ct.
1577 (2010) (statute criminalizing depictions of animal cruelty).
57


1.

The FCC’s Action Directly Advances Substantial
Government Interests.

The FCC’s action promotes competition in the video programming
market and “diversity” in the available sources of video programming, see
Order, ¶104 (J.A.1426), both of which are “important governmental
objectives unrelated to the suppression of speech.” Time Warner, 93 F.3d at
969.
The “[g]overnment’s interest in eliminating restraints on fair
competition is always substantial, even when the individuals or entities
subject to particular regulations are engaged in expressive activity protected
by the First Amendment.” Turner I, 512 U.S. at 664. And “assuring that the
public has access to a multiplicity of information sources is a governmental
purpose of the highest order, for it promotes values central to the First
Amendment.” Id. at 663. Indeed, the First Amendment stems from the
premise that “the widest possible dissemination of information from diverse
and antagonistic sources is essential to the welfare of the public.” Associated
Press v. United States, 326 U.S. 1, 20 (1945) (citation omitted).
As the Supreme Court has made clear, these important governmental
interests are not constrained by principles of antitrust law. See Turner II, 520
U.S. at 194 (“Federal policy . . . has long favored preserving a multiplicity of
broadcast outlets regardless of whether the conduct that threatens it is
58


motivated by anticompetitive animus or rises to the level of an antitrust
violation.”) (emphasis added). Thus, there is no more basis in the First
Amendment than there is in the text of the program carriage statute to
conclude that section 616 must be cabined by antitrust law doctrines
(including requirements of market power or bottleneck control). Contrary to
the claims of Comcast and its amicus (Comcast Br. 20; NCTA Br. 17), the
Supreme Court in the Turner cases never suggested that any carriage
requirement imposed on cable operators—as a constitutional minimum—
must target the exercise of monopoly “bottleneck” power. Rather, the Court
made clear that the government may properly rely on the distinct, but related,
interests in “promoting fair competition” and diversity of information
sources. Turner I, 512 U.S. at 662; Turner II, 520 U.S. at 189-190; see also
15
Cablevision, 649 F.3d at 711.

15 Because Comcast relies on the mistaken premise that any constitutional
application of section 616 must target the exercise of “bottleneck” power
(Comcast Br. 20; see also NCTA Br. 22), its argument that cable operators no
longer exercise such power (Comcast Br. 51-53) is beside the point. In any
event, this Court observed only recently that, “[w]hile cable no longer
controls 95 percent of the MVPD market, as it did in 1992, [it] still controls
two thirds of the market nationally,” and “enjoy[s] [even] higher shares in
several markets,” some of which remain “highly susceptible to near-
monopoly control.” Cablevision Sys. Corp. v. FCC, 597 F.3d 1306, 1314
(D.C. Cir. 2010); Cablevision, 649 F.3d at 712. Here, as the FCC found,
Comcast “represents nearly 24 percent of the [MVPD] market and has even
greater influence on the market due to the ripple effect.” Order, ¶87
59

Material Under Seal Deleted

Like the underlying statute, the FCC’s Order redresses harms to fair
competition and diversity of information sources by requiring Comcast to
refrain from its exclusionary and affiliation-based discrimination. As
discussed above, overwhelming record evidence showed that Comcast’s
discriminatory treatment of Tennis Channel (and favoring of its own
affiliates) severely restrained Tennis Channel’s ability to compete in the
video programming market, including its ability to fairly compete for
viewers, advertisers, and programming rights. Order, ¶¶45-87 (J.A.1402-19);
see also Point I.B.2, supra. By ordering Comcast to cease its discriminatory
treatment, the Order directly furthers the government’s substantial interests.
Turner II, 520 U.S. at 213-14.
2.

The Equal-Carriage Remedy Does Not Burden
Substantially More Speech Than Necessary.

To satisfy intermediate scrutiny, “a regulation need not be the least
speech-restrictive means of advancing the Government’s interests.” Turner I,
512 U.S. at 662. A content-neutral regulation will be sustained if it does not
“burden substantially more speech than is necessary to further the
government’s legitimate interests.” Id. (quoting Ward, 491 U.S. at 799).

(J.A.1419). Indeed, its market shares exceed
in seven of the top
ten MVPD markets, with shares above
in Philadelphia and
Chicago. Id.
60


The FCC’s equal-carriage remedy comfortably satisfies that standard.
The requirement is narrowly drawn to address Comcast’s violation of section
616: Comcast’s prohibited conduct consists of anticompetitive
discrimination on the basis of affiliation, and the remedy orders Comcast to
stop such discrimination by affording Tennis Channel treatment that is equal
16
to that it affords to its own affiliates. The remedy is also sensitive to
Comcast’s First Amendment rights because it leaves to the cable operator’s
discretion whether to carry all three networks on broadly penetrated tiers, to
carry all three networks on the Sports Tier or some intermediate tier, or not to
carry the three networks at all. Order, ¶90 & n.309 (J.A.1421, 1423).
Comcast faults the FCC for not requiring Comcast to carry Tennis
Channel on the intermediate Digital Preferred Tier, which it asserts is a “less
intrusive remedy” than the one adopted by the FCC. Comcast Br. 56. In fact,
that alternative remedy would impose a greater burden on Comcast’s editorial
discretion than the equal-carriage requirement because it would compel
Comcast to carry a specific network to a particular audience. Moreover,

16 NCTA argues (Br. 10) that the remedy is overly broad because it required
equal carriage on a national basis while, according to NCTA, Comcast may
possess bottleneck power only in individual local markets. That argument is
misconceived because, as shown above (pp. 42-43, 58-59, supra) neither the
text of the statute nor the First Amendment requires proof of bottleneck or
monopoly control to establish a violation of section 616.
61


Comcast never argued before the agency that, in the event of finding a
violation of section 616, carriage on the Digital Preferred Tier would be a less
speech-restrictive remedy. See Order, n.290 (J.A.1420).
Comcast also argues that the FCC’s remedy is unconstitutionally
overbroad insofar as it “may” require Comcast to pay additional
compensation to Tennis Channel. Id. On its face, that claim is speculative—
and hence unripe—because it is entirely uncertain how Comcast will elect to
comply with the equal-carriage remedy (and thus whether the remedy will
require Comcast to pay any increased license fees). See Nat’l Ass’n of
Broadcasters v. FCC, 569 F.3d 416, 425 (D.C. Cir. 2009).
Contrary to Comcast’s assertion (Comcast Br. 41), it was entirely
proper for the FCC to specify that, if Comcast moves Tennis Channel to a
more widely distributed tier, the company “must pay Tennis Channel any
additional compensation” required by the parties’ contractual arrangements
for broader carriage. Order, ¶92 (J.A.1422). A “remedy” that permits
Comcast to distribute Tennis Channel’s programming to additional Comcast
subscribers for free effectively would reward Comcast for violating section
616. Comcast’s suggestion that the Order precludes the parties from
negotiating appropriate license fees for any broader carriage is mistaken. The
FCC “did not prescribe specific license fees,” but instead make clear that the
62


fees for any broader carriage would be governed by existing or future
contractual arrangements between Comcast and Tennis Channel. Id. There is
nothing “unjustifiable” (Comcast Br. 41) about holding Comcast to its
contractual commitments.

III. THE COMMISSION REASONABLY CONSTRUED ITS

STATUTE OF LIMITATIONS RULE IN CONCLUDING
THAT TENNIS CHANNEL’S COMPLAINT WAS TIMELY
FILED.

Section 76.1302(f)(3) of the FCC’s rules provides that a section 616
complaint must be filed within one year after the party “has notified [an
MVPD] that it intends to file a complaint with the Commission based on
violations of one or more of” the program carriage rules. 47 C.F.R.
17
§76.1302(f)(3) (2010). Tennis Channel notified Comcast of its intent to file
a complaint in December 2009 and filed its complaint in January 2010.
Tennis Channel also filed its complaint within one year of the date of the
allegedly discriminatory conduct, i.e., Comcast’s refusal in June 2009 to
move Tennis Channel to more widely distributed tier. Order, ¶30 (J.A.1397).
The FCC’s determination that Tennis Channel’s complaint was timely is thus
based upon a straightforward and textual reading of section 76.1302(f)(3).
See id., ¶¶30-34 (J.A.1397-99). Because that reading is neither “plainly

17 We refer to the limitations rule in effect when Tennis Channel filed its
complaint. That rule, which was amended in October 2011, is now found at
section 76.1302(h).
63


erroneous [n]or inconsistent with” the agency’s rule, it “is ‘entitled to
controlling weight.’” Star Wireless, 522 F.3d at 473.
Comcast contends that the FCC’s reading of section 76.1302(f)(3) is at
odds with the FCC’s “historical understanding” that the provision applies
“only where an MVPD denies or refuses to acknowledge a request to
negotiate for carriage.” Comcast Br. 60. That claim lacks merit. While the
text of the rule as originally promulgated was limited to denials or to refusals
to negotiate for carriage, “the Commission removed th[at] limiting language
in 1994.” Order, ¶32 (J.A.1398). Thus, Comcast bases its reading on
limiting language that was deleted from the rule 18 years ago.
Comcast also argues that “[b]y seeking an order that compels Comcast
to carry it more broadly,” Tennis Channel is “attempting to rewrite the terms
of [its] contract” with Comcast. It contends (Br. 60) that the applicable time
limit is therefore provided by section 76.1302(f)(1), which requires a party to
file a program carriage complaint within one year of the date upon which it
enters into a carriage contract “that a party alleges to violate one or more of
the [Commission’s] rules.” 47 C.F.R. §76.1302(f)(1) (2010).
This argument fares no better. By its terms, section 76.1302(f)(1)
applies only when a contract is alleged to violate the FCC’s rules
implementing section 616. Here, Tennis Channel’s complaint made no
64


allegation that the 2005 carriage agreement between the parties was itself
unlawful. Rather, it complained that Comcast’s subsequent refusal in 2009 to
move Tennis Channel to a more widely distributed tier violated section 616.
Order, ¶29 (J.A.1397). Because Tennis Channel does not contend that the
contract itself violates FCC rules, but instead maintains that Comcast’s
discriminatory carriage of Tennis Channel is unlawful, section 76.1302(f)(1)
is inapplicable.
The agency’s application of section 76.1302(f)(3) in this case is
consistent with the its prior interpretations of that provision. See HDO, ¶¶13-
15 (J.A.1303-04). For example, in NFL Enterprises LLC v. Comcast Cable
Communications, Comcast entered into a contract with NFL Network that
entitled Comcast to move the network to the Sports Tier if certain events
occurred. When Comcast, exercising that contractual right, moved NFL
Network to the Sports Tier, the network brought a section 616 complaint
against Comcast. The Media Bureau rejected Comcast’s claim that the
complaint was barred by section 76.1302(f)(1), explaining that the relevant
triggering event for purposes of the limitations period was Comcast’s
retiering of NFL Network, not the date of execution of the contract. Herring
Broad. d/b/a WealthTV v. Time Warner, 23 FCC Rcd 14787, 14820 (¶¶69-70)
65


(Media Bur. 2008). Thus, the complaint was governed by—and timely
under—section 76.1302(f)(3). Id.
Comcast unsuccessfully raised similar arguments in a program carriage
case involving Mid-Atlantic Sports Network (“MASN”). In that case, the
carriage agreement left it to Comcast’s discretion whether to carry the
network on certain of its systems. Because the complaint alleged that
Comcast acted unlawfully by declining to carry MASN on those systems, the
Bureau rejected Comcast’s claims that section 76.1302(f)(1) applied, and
found the complaint timely under section 76.1302(f)(3). Id., ¶¶102-105. In
light of the NFL and MASN decisions, Comcast cannot claim that that the
FCC’s reading of its rule subjects it to “unfair surprise.” Comcast Br. 60.
Nor is there merit to Comcast’s claim that the FCC’s reading of section
76.1302(f)(3) renders the other subsections of section 76.1302(f) superfluous
and effectively “allow[s] a party to a carriage contract to bring suit at any
time.” Comcast Br. 59. The FCC interprets the rule consistent with the well-
established doctrine of laches to “impliedly require notification of an intent to
file a complaint within a reasonable time” after “discovery of the allegedly
unlawful conduct.” Order, n.105 (J.A.1397). Thus, complainants have a
strong incentive not to simply sit on their rights; unreasonable delay will
result in forfeiture of their claims. Here, “the allegedly unlawful conduct
66


. . . occurred within one year of the filing of the complaint,” id., and Comcast
cannot plausibly claim that it is unreasonable to permit programmers to file a
complaint within one year of the discriminatory conduct. Under Comcast’s
proposed reading of the FCC’s rule, a programming network effectively
would be barred from complaining about any carriage-related discrimination
occurring more than one year after the execution of its contract.
Equally flawed is Comcast’s contention (Br. 62) that Tennis Channel’s
complaint is untimely because Tennis Channel had considered filing a
program carriage complaint in 2007 and 2008, but refrained from doing so at
that time. As the Commission found, Tennis Channel reasonably “waited
until it thought it had a sufficiently compelling case for broader carriage” in
light of its improved programming and viewership. Order, ¶34 (J.A.1399);
see also id., ¶12 (J.A.1390). The fact that Tennis Channel could have
asked—and been refused—broader distribution at an earlier time does
nothing to undermine the Commission’s determination that Tennis Channel’s
2010 complaint, based on Comcast’s actions in 2009, was timely filed.
67


CONCLUSION

For the foregoing reasons, the petition for review should be denied.
Respectfully
submitted,
CATHERINE G. O’SULLIVAN
SEAN A. LEV
ROBERT J. WIGGERS
GENERAL COUNSEL
ATTORNEYS


PETER KARANJIA
UNITED STATES
DEPUTY GENERAL COUNSEL
DEPARTMENT OF JUSTICE

WASHINGTON, D.C. 20530
JACOB M. LEWIS

ASSOCIATE GENERAL COUNSEL

/s/ Laurel R. Bergold

LAUREL R. BERGOLD
COUNSEL

FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740
December 3, 2012
68


IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


COMCAST CABLE COMMUNICATIONS, LLC,
PETITIONER,
v.
NO. 12-1337
F

EDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS.



CERTIFICATE OF COMPLIANCE

Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby
certify that the accompanying Brief for Respondents in the captioned case
contains 13,950 words.

/s/ Laurel R. Bergold
Laurel R. Bergold

Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1740 (Telephone)
(202) 418-2819 (Fax)
December 3, 2012



12-1337


IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT


Comcast Cable Communications, LLC, Petitioners

v.

Federal Communications Commission and the
United States of America, Respondents


CERTIFICATE OF SERVICE



I, Laurel R. Bergold, hereby certify that on December 3, 2012, I
electronically filed the foregoing Final Public (Redacted) Brief for
Respondents with the Clerk of the Court for the United States Court of
Appeals for the D.C. Circuit by using the CM/ECF system. Participants in
the case who are registered CM/ECF users will be served by the CM/ECF
system.

Erik Randall Zimmerman
Robert A. Long, Jr.
Miguel A. Estrada
Stephen A. Weiswasser
Gibson, Dunn & Crutcher LLP
Covington & Burling LLP
1050 Connecticut Ave., N.W.
1201 Pennsylvania Ave., N.W.
Washington, D.C. 20036
Washington, D.C. 20004
Counsel for: Comcast Cable
Counsel for: The Tennis Channel,
Communications, LLC
Inc.

Lynn R. Charytan
Robert J. Wiggers
Comcast Corporation
Catherine G. O’Sullivan
300 New Jersey Avenue
U.S. Department of Justice
Suite 700
Antitrust Division, Appellate Section
Washington, D.C. 20001
Room 3224
Counsel for: Comcast Cable
950 Pennsylvania Avenue, N.W.
Communications, LLC
Washington, D.C. 20530-0001
Counsel for: USA

Diane B. Burstein
H. Bartow Farr, III
Rick C. Chessen
Farr & Taranto
Neal M. Goldberg
Suite 400
Michael S. Schooler
1615 M Street, N.W.
National Cable &
Washington, D.C. 20036
Telecommunications Association
Counsel for: National Cable &
25 Massachusetts Avenue, NW
Telecommunications Association
Suite 100
Washington, D.C. 20001-1431
Counsel for: National Cable &
Telecommunications Association

Markham Cho Erickson

Holch & Erickson LLP
400 North Capitol Street, N.W.
Suite 585
Washington, D.C. 20001
Counsel for: Bloomberg L.P.


/s/ Laurel R. Bergold

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