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

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Released: August 27, 2012
USCA Case #12-1337 Document #1389500 Filed: 08/16/2012 Page 1 of 46

Public Copy—Sealed Material Deleted

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



COMCAST CABLE COMMUNICATIONS, LLC,
)









)
Petitioner,
)









)




v.




)

No. 12-1337











)
FEDERAL COMMUNICATIONS COMMISSION
)
and UNITED STATES
OF
AMERICA,
)









)
Respondents. )


OPPOSITION OF FEDERAL COMMUNICATIONS

COMMISSION TO PETITIONER’S EMERGENCY

MOTION FOR STAY OF AGENCY ORDER












Sean A. Lev
General
Counsel








Peter Karanjia







Deputy General Counsel








Jacob M. Lewis
Associate
General
Counsel








James M. Carr
Counsel

Federal
Communications
Commission
Washington,
D.C.

20554
(202)
418-1762


USCA Case #12-1337 Document #1389500 Filed: 08/16/2012 Page 2 of 46

TABLE OF CONTENTS


Table of Authorities ..........................................................................................ii
Introduction....................................................................................................... 1
Background ....................................................................................................... 4
Argument .......................................................................................................... 8
THE STAY REQUEST SHOULD BE DENIED............................................. 8
A. Comcast Has Failed To Show That It Is Likely To Prevail
On The Merits. ...................................................................................... 8
B. Comcast Has Not Shown That It Will Be Irreparably
Harmed Absent A Stay. ....................................................................... 17
C. A Stay Would Harm Tennis Channel And The Public
Interest. ............................................................................................... 20
Conclusion ...................................................................................................... 20


USCA Case #12-1337 Document #1389500 Filed: 08/16/2012 Page 3 of 46

TABLE OF AUTHORITIES

CASES


BellSouth Corp. v. FCC, 144 F.3d 58 (D.C. Cir.
1998)............................................................................................................15
Cablevision Sys. Corp. v. FCC, 649 F.3d 695 (D.C.
Cir. 2011).............................................................................................. 15, 16
Capital Network Sys., Inc. v. FCC, 28 F.3d 201
(D.C. Cir. 1994)...........................................................................................11
Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290 (D.C. Cir. 2006) ....................................................................17
Rural Cellular Ass’n v. FCC, 2012 WL 2866314
(D.C. Cir. July 13, 2012) ...............................................................................8
Siegel v. SEC, 592 F.3d 147 (D.C. Cir. 2010).................................................12
Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct.
2254 (2011) ...............................................................................................2, 9
TCR Sports Broad. Holding v. FCC, 679 F.3d 269
(4th Cir. 2012) .............................................................................................13
Thompson Med. Co. v. FTC, 791 F.2d 189 (D.C.
Cir. 1986).....................................................................................................12
Time Warner Entm’t Co. v. FCC, 93 F.3d 957 (D.C.
Cir. 1996).....................................................................................................16
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622
(1994) ..........................................................................................................16
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180
(1997) ............................................................................................................3
United Gas Improvement Co. v. Callery Props., 382
U.S. 223 (1965) ...........................................................................................19
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ......................................15
Washington Metro. Area Transit Comm’n v.
Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir.
1977)..............................................................................................................8
Winter v. Natural Res. Def. Council, 555 U.S. 7
(2008) ........................................................................................................8, 9
ii

USCA Case #12-1337 Document #1389500 Filed: 08/16/2012 Page 4 of 46
Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C.
Cir. 1985)........................................................................................ 17, 18, 19

STATUTES AND REGULATIONS


47 U.S.C. § 536 .................................................................................................1
47 U.S.C. § 536(a)(3) ........................................................................................2
47 U.S.C. § 536(a)(4) ......................................................................................21
47 U.S.C. § 536(a)(5) ........................................................................................1
47 C.F.R. § 76.1302(f)(1) (2010) ......................................................................9
47 C.F.R. § 76.1302(f)(3) (2010) ......................................................................9

OTHERS


H.R. Rep. No. 102-628 (1992) ........................................................................11


iii

USCA Case #12-1337 Document #1389500 Filed: 08/16/2012 Page 5 of 46

INTRODUCTION


The Federal Communications Commission opposes Comcast’s motion
to stay the FCC’s order requiring Comcast to remedy its violation of Section
616 of the Communications Act, 47 U.S.C. § 536, by carrying Tennis
Channel at the same level of distribution as two Comcast-affiliated sports
networks, Golf Channel and Versus.

Animated by concerns that vertically integrated cable operators have
the incentive and ability to favor their affiliated programmers, Congress
enacted Section 616 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 FCC in January 2010
against Comcast, the nation’s largest cable operator. After conducting a
6-day hearing (featuring live testimony) and reviewing a voluminous
evidentiary record, an FCC Administrative Law Judge (“ALJ”) concluded


USCA Case #12-1337 Document #1389500 Filed: 08/16/2012 Page 6 of 46

that Comcast had discriminated on the basis of affiliation by giving broader
carriage to its affiliated sports networks (Golf Channel and Versus) than it
gave to Tennis Channel. To remedy this violation of Section 616, the ALJ
ordered Comcast, among other things, to provide Tennis Channel with the
same level of distribution as Golf Channel and Versus.
In
the
Order on review, the FCC affirmed the ALJ’s finding that
Comcast violated Section 616, and upheld the monetary forfeiture and
“equal carriage” remedies ordered by the ALJ. Comcast has moved to stay
the Order pending judicial review, contending that it improperly allows
Tennis Channel to “rewrite” its existing contract with Comcast. Mot. at 4.
To the contrary, the Order simply requires Comcast to exercise its
contractual rights in compliance with federal law.

Comcast is not likely to succeed on the merits of its challenge to the
Order. The FCC’s reading of its own regulation specifying the limitations
period for Section 616 complaints was reasonable and neither “plainly
erroneous” nor “inconsistent with the regulation.” Talk Am., Inc. v. Mich.
Bell Tel. Co., 131 S. Ct. 2254, 2261 (2011). Similarly, the agency’s
determination that Comcast violated Section 616 is consistent with the
statutory text and supported by substantial evidence. The carriage remedy
also comports with the First Amendment: It “advances important
governmental interests unrelated to the suppression of free speech” – fair
competition and diversity of information sources in the pay-TV market – and
2

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“does not burden substantially more speech than necessary to further those
interests.” Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189 (1997).
Nor has Comcast shown that it will suffer irreparable harm without a
stay. To minimize any burden on Comcast, the FCC’s Office of General
Counsel has stayed the portion of the Order requiring the cable operator to
launch Tennis Channel on any cable systems that do not already carry the
network and allegedly have limited available channel space. For the
remaining cable systems at issue in this case, Comcast already has chosen to
carry Tennis Channel; the FCC’s Order does not compel Comcast to carry
any speech that it is opposed to carrying for any expressive purpose. In all
events, Comcast has not come close to demonstrating the “certain” and
“great” injury required by this Court to justify the extraordinary remedy of a
stay. Comcast’s alleged injuries consist of administrative burdens (such as
updating databases and programming guides) that are routine for any cable
operator – particularly one as large and sophisticated as Comcast. Indeed,
Comcast represented to the Commission over six months ago that it was
“engaging in good-faith planning for compliance with and implementation
of” the ALJ’s decision. Given that representation, Comcast should not now
be heard to complain that it suffers extraordinary and irreparable harm in
being required to do what it has long stated it has been planning to do.
Lastly, the public interest and the substantial harm that Tennis
Channel would suffer if the FCC’s remedy were suspended weigh decidedly
against issuance of a stay. The stay motion should be denied.
3

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Material Under Seal Deleted

BACKGROUND



1. Comcast, the nation’s largest MVPD, owns a controlling interest in
Golf Channel and Versus, two cable sports networks. Add. 492-93.1 Tennis
Channel is a national sports network that focuses on tennis-related
programming. Add. 491. It is “unaffiliated with Comcast.” Add. 493-94.
Since Comcast began carrying Tennis Channel in 2005, the network
has been placed on a premium Sports Tier on the vast majority of Comcast’s
systems. To access this tier, subscribers must pay an additional monthly
charge above what they pay for basic digital cable service. As a result,
Tennis Channel is available to only
percent of Comcast’s subscribers. By
contrast, Golf Channel and Versus – Comcast’s affiliates – are offered on
channel tiers that are available to all digital subscribers at no additional cost.
Those tiers reach many more of Comcast’s customers than the channel tier
on which Comcast carries Tennis Channel. Add. 493.
In 2009, citing recent viewership growth and programming
improvements, Tennis Channel asked Comcast to increase its distribution by
repositioning 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. After Comcast rejected
Tennis Channel’s proposal in June 2009, Tennis Channel filed a complaint
with the FCC on January 5, 2010, asserting that Comcast had discriminated
against it because the network was unaffiliated with Comcast. Add. 493-94.

1 “Add.” refers to the addendum to Comcast’s stay motion.
4

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2. The FCC’s Media Bureau determined that Tennis Channel’s
complaint was timely filed and designated it for hearing before an ALJ.
Add. 494-95. After conducting a hearing that featured live testimony and
thousands of exhibits, the ALJ issued a decision granting the complaint.
Add. 421. First, the ALJ found that Tennis Channel was “similarly situated”
to Golf Channel and Versus – i.e., the three networks compete for the same
audience, target the same advertisers, and have similar ratings and
programming. Add. 431-46. Thus, it was reasonable to compare Comcast’s
treatment of the three networks for purposes of assessing whether Comcast
had discriminated against Tennis Channel – and in favor of Golf Channel
and Versus – on the basis of Tennis Channel’s unaffiliated status.
The ALJ next determined that Comcast violated Section 616 by
engaging in affiliation-based discrimination against Tennis Channel, while
affording preferential treatment to Golf Channel and Versus. Finding
undisputed evidence that Comcast gave Golf Channel and Versus more
favorable channel placement and much broader carriage than Tennis
Channel (Add. 446-47), the ALJ concluded that “the weight of reliable
record evidence demonstrates” that this differential treatment was “based
upon affiliation.” Add. 447. In particular, the ALJ cited an
acknowledgment by Comcast’s former Chief Operating Officer that
affiliated networks “get treated like siblings as opposed to like strangers”
and receive a “different level of scrutiny” from that given to unaffiliated
networks. Add. 447; see also id. (citing similar testimony from Comcast’s
5

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senior executive responsible for carriage decisions). The ALJ also pointed
to undisputed evidence that “[e]very one of [Comcast’s] affiliated networks
is carried on more widely distributed tiers” than the Sports Tier, and that
Comcast “carries only unaffiliated sports networks exclusively on the
narrowly penetrated Sports Tier.” Add. 448.
In addition, the ALJ 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.” Add. 459. The ALJ found that Comcast’s decision to carry
Tennis Channel on the Sports Tier “greatly diminishes the number of Tennis
Channel subscribers which in turn reduces the amount of its earnings derived
from license fees,” “hinders the network’s ability to compete for valuable
programming rights,” “makes it more difficult for the network to sell
advertising,” and reduces its advertising revenues. Add. 459-62.
To remedy Comcast’s violation of Section 616, the ALJ ordered
Comcast “to carry Tennis Channel at the same level of distribution that it
carries Golf Channel and Versus” (subject to an exception regarding analog
services) and “to provide Tennis Channel with equitable treatment (vis-à-vis
Golf Channel and Versus) as to channel placement.” Add. 472.
3. After conducting an independent review of the extensive
evidentiary record, the Commission upheld the ALJ’s finding that Comcast
violated Section 616, and (with one exception) affirmed the ALJ’s remedy.
Add. 488. Two Commissioners dissented. Add. 532-36.
6

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The Commission first affirmed the Media Bureau’s determination that
Tennis Channel filed its complaint within the one-year limitations period
established by the FCC’s rules. Add. 499-502. The Commission also
agreed with the ALJ that the record demonstrated that Comcast had
deliberately discriminated against Tennis Channel on the basis of its lack of
affiliation with the cable operator (Add. 505-20), and that this discriminatory
conduct unreasonably restrained the network’s ability to compete fairly
(Add. 520-23). The Commission next affirmed the ALJ’s “equal carriage”
remedy, rejecting Comcast’s arguments that the remedy violated the First
Amendment. Add. 523-31. The Commission, however, vacated the ALJ’s
“channel placement” remedy, finding the record insufficient to “establish
that Tennis Channel’s ability to compete fairly was unreasonably restrained”
by its specific channel placement. Add. 524.
4. After it petitioned the FCC for an administrative stay of the Order,
Comcast filed a motion for a judicial stay on August 8, 2012. One day later,
the FCC’s Office of General Counsel granted a limited stay of the Order
pending review by this Court.2 The administrative stay suspends Comcast’s
duty to comply with the Order only for the Comcast systems that do not
currently carry Tennis Channel and allegedly have little to no available
channel capacity. Stay Order ¶ 44.

2 Tennis Channel, Inc. v. Comcast Cable Commc’ns, LLC, DA 12-1311
(OGC Aug. 9, 2012) (“Stay Order”). A copy of the Stay Order is attached,
along with a separate statement by Commissioner Pai.
7

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ARGUMENT

THE STAY REQUEST SHOULD BE DENIED



The injunctive relief sought by Comcast is “an extraordinary remedy
that may only be awarded upon a clear showing that the plaintiff is entitled
to such relief.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008).
To obtain a stay, Comcast must show that: (1) it will likely prevail on the
merits; (2) it will suffer irreparable harm unless a stay is granted; (3) other
interested parties will not be harmed by a stay; and (4) a stay will serve the
public interest. Id. at 20; Washington Metro. Area Transit Comm’n v.
Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). Comcast has failed
to satisfy this stringent standard.

A.


Comcast Has Failed To Show That It Is Likely




To Prevail On The Merits.



Comcast contends that the FCC misconstrued its own limitations rule,
misapplied Section 616, and violated the First Amendment. None of these
contentions has merit.

1. Comcast asserts that the Commission misread its rule prescribing
the limitations period for program carriage complaints. Mot. at 8-10. It is
well settled, however, that the Court defers to the FCC’s reading of its own
rules “unless the interpretation is plainly erroneous or inconsistent with the
regulations or there is any other reason to suspect that the interpretation does
not reflect the agency’s fair and considered judgment on the matter in
question.” Rural Cellular Ass’n v. FCC, 2012 WL 2866314, *9 (D.C. Cir.

8

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July 13, 2012) (quoting Talk Am., 131 S. Ct. at 2261). Under this highly
deferential standard, Comcast does not come close to establishing that it will
likely succeed in showing that the Commission misapplied its own rule.

FCC Rule 76.1302(f)(3) provides that a Section 616 program carriage
complaint is timely if it is 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.
§ 76.1302(f)(3) (2010).3 It is undisputed that Tennis Channel filed its
complaint within one year of notifying Comcast of its intent to do so.
“Tennis Channel notified Comcast of its intent to file a complaint in
December 2009 and filed its complaint in January 2010.” Add. 500.
Moreover, Tennis Channel’s complaint did not allege that the 2005 contract
itself was unlawful, but rather that Comcast’s subsequent refusal in June
2009 to relocate Tennis Channel to a more widely distributed tier violated
Section 616. For this reason, Comcast is wrong in contending (Mot. at 8)
that Tennis Channel’s complaint was untimely under 47 C.F.R.
§ 76.1302(f)(1) because that provision by its terms only applies when a
contract is alleged to violate the rules. Add. 501. The filing of Tennis
Channel’s complaint “occurred well within one year of the conduct that
allegedly violated Section 616.” Add. 500. Therefore, it was timely.

3 We refer to the rules in effect when Tennis Channel filed its complaint in
January 2010. The relevant rule, which was amended in October 2011, is
now found at Section 76.1302(h).
9

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Comcast nevertheless contends that the FCC’s reading of subsection
(f)(3) is “implausible” because it “renders subsections (f)(1) and (f)(2)
superfluous” and “allows any long-dead claim to be resuscitated.” Mot. at 9.
That is incorrect. The agency reads subsection (f)(3) “consistent with the
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.” Add. 500. Here, “the allegedly unlawful conduct …
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
counter-textual reading of the Commission’s rule, a programming network
would be barred from complaining about any carriage-related discrimination
occurring more than one year after the execution of its contract so long as
the cable operator did not violate the terms of that contract.4

2. Comcast’s challenge to the FCC’s application of Section 616 is
likewise unavailing. Comcast asserts that Congress intended for the
“unreasonable restraint” element of the statute to be limited by the “essential
facilities” doctrine and other antitrust principles. Mot. at 10. But nothing in
the statute’s text indicates any such intent (Add. 504); and “Comcast’s

4 Comcast bases its reading on limiting language that was deleted from the
rule 18 years ago. It argues that Section 76.1302(f)(3) “applies only where
an MVPD denies or refuses to acknowledge a request to negotiate for
carriage.” Mot. at 9. While the original version of subsection (f)(3) “was
expressly limited to those circumstances” (id. at 9 n.10), “the Commission
removed the limiting language in 1994.” Add. 501.
10

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narrow interpretation of Section 616” is “inconsistent with the [statute’s]
legislative history.” Add. 522; see H.R. Rep. No. 102-628, at 111 (1992)
(Section 616 “provides new FCC remedies and does not amend, and is not
intended to amend, existing antitrust laws”).

Adopting a “straightforward and textual reading” of Section 616
(Add. 522), the Commission construed the undefined and ambiguous phrase
“unreasonably restrain” to mean that “the discrimination must be
unreasonable and have a restraining effect on the programmer’s ability to
compete fairly in the MVPD distribution marketplace.” Add. 504. “[T]his
court owes substantial deference” to the FCC’s interpretation of ambiguous
provisions of the Communications Act, like the term “unreasonable.”
Capital Network Sys., Inc. v. FCC, 28 F.3d 201, 204 (D.C. Cir. 1994).

Contrary to Comcast’s contention (Mot. at 11), the FCC’s reading of
Section 616 does not nullify the unreasonable-restraint requirement. The
agency did not find an unreasonable restraint merely “because Tennis
Channel could secure more viewers and advertising revenue via broader
carriage” (id.), but because 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.” Add. 521. For
example, depriving Tennis Channel of broader carriage on Comcast’s cable
systems made it more “difficult for the network to acquire programming
rights” and has “discouraged advertisers from placing advertisements on the
network,” thereby reducing Tennis Channel’s advertising revenues. Add.
11

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USCA Case #12-1337 Document #1389500 Filed: 08/16/2012 Page 17 of 46

F.3d 269, 276-77 (4th Cir. 2012) (applying the “substantial evidence” test in
upholding the FCC’s denial of a Section 616 discrimination complaint).

In this case, substantial evidence supports the FCC’s finding that
Comcast discriminated on the basis of affiliation. For example, the record
contained an acknowledgment by Comcast’s Chief Operating Officer that
Comcast’s “affiliated networks are ‘treated like siblings as opposed to like
strangers,’ and that affiliates ‘get a different level of scrutiny’ than
unaffiliated networks.” Add. 505. Comcast’s carriage practices confirmed
this preference for affiliates. The record showed that “[e]very one” of
Comcast’s affiliated sports networks “is carried on more widely distributed
tiers” than the Sports Tier, and that Comcast “carries only unaffiliated sports
networks exclusively on the narrowly penetrated Sports Tier.” Add. 448.

Comcast asserts that it rejected Tennis Channel’s proposal on the
basis of a good faith cost-benefit analysis. But the Comcast executive who
performed the analysis “admitted in her testimony that she gave no thought
to preparing an analysis of ‘what Comcast might have gained by moving
The Tennis Channel to a more widely-distributed tier.’” Add. 518. This
testimony supported the Commission’s determination that “Comcast made
no attempt to analyze benefits at all.” Id.6

6 Comcast claims that it relied on “field reports showing a lack of subscriber
interest in Tennis Channel.” Mot. at 12. But the Commission reasonably
discounted the credibility of those reports from Comcast’s regional
executives because they were “incomplete,” and because “Comcast had
earlier overridden regional executives’ decisions to carry Tennis Channel
13

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Material Under Seal Deleted


Comcast next points to “the similar decisions” of other MVPDs as
evidence that it did not engage in affiliation-based discrimination. Mot. at
12. The Commission reasonably found that evidence unpersuasive. It noted
that the record, “examined in its entirety, shows that Comcast treats Golf
Channel and Versus more favorably and Tennis Channel less favorably”
than other MVPDs treat them. Add. 514.7

3. Comcast’s First Amendment claims also lack merit. Contrary to
Comcast’s assertion (Mot. at 14), the Order did not “infer[ ] discrimination”
from a “content-based” finding that Tennis Channel is “similarly situated” to
Golf Channel and Versus. The Commission examined whether the networks
were “similarly situated” because the assessment of “evidence of disparate
treatment of similarly situated parties … is a hallmark of discrimination law”

more broadly,” thereby sending the unmistakable signal that Comcast “did
not favor broad carriage of Tennis Channel.” Add. 519.
7 “The record demonstrates that Comcast carries Tennis Channel at

of the average penetration rate at which it is carried by other MVPDs,
including telephone companies and satellite MVPDs.” Add. 514. The FCC
also found evidence that “Golf Channel and Versus are carried on Comcast
at

respectively, than they are by other MVPDs.” Add. 515. The dissenting
Commissioners’ claim that “Comcast’s treatment of Tennis Channel was
within the industry mainstream” – an assertion on which Comcast heavily
relies (Mot. at 7, 12) – was based on a market analysis that excluded
DIRECTV and DISH Network. Add. 532-33. That analysis did not
accurately reflect the industry mainstream because it ignored “Comcast’s
principal competitors” – the nation’s “second and third largest MVPDs.”
Add. 516. In any event, the Commission explained that, even if it excluded
consideration of how other MVPDs treated Tennis Channel, independent –
and substantial – evidence supported its conclusion that Comcast had
discriminated against Tennis Channel on the basis of affiliation. Add. 517.

14

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generally, and is no less relevant where the parties receiving disparate
treatment are video programmers. Add. 525-26. Moreover, the examination
of whether Tennis Channel and Comcast’s affiliates were similarly situated
was just the first step in the agency’s analysis. After concluding that the
networks were similarly situated, the FCC examined multiple sources of
evidence showing that Comcast’s differential treatment of Tennis Channel
was motivated by improper considerations of affiliation. Add. 514-20.
Thus, there is no basis for Comcast’s claim that the agency “[i]gnor[ed]
Comcast’s actual motivation.” Mot. at 14.

Nor was the agency’s analysis impermissibly content-based or subject
to strict scrutiny. “[T]here is absolutely no evidence, nor even any serious
suggestion, that the Commission issued its [Order] to [favor or] disfavor
certain messages or ideas.” Cablevision Sys. Corp. v. FCC, 649 F.3d 695,
717 (D.C. Cir. 2011) (internal quotation marks omitted). As the
Commission explained, “[t]he particular content of the programming at
issue was irrelevant; the same comparative analysis would apply regardless
of the specific type of programming involved.” Add. 528.
“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). The goal
of the FCC’s Order – “promoting diversity and competition in the video
programming market” (Add. 528) – “is independent of content and
viewpoint.” BellSouth Corp. v. FCC, 144 F.3d 58, 69 (D.C. Cir. 1998).
15

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Therefore, intermediate scrutiny applies. Time Warner Entm’t Co. v. FCC,
93 F.3d 957, 977 (D.C. Cir. 1996) (applying intermediate scrutiny to FCC’s
program access rules, which “regulat[e] cable programmers and operators on
the basis of the ‘economics of ownership,’ a characteristic unrelated to the
content of speech”).
The
Order easily satisfies that standard. The carriage remedy in this
case is designed to “promote competition and diversity in the video
programming market” (Add. 529) – two “important governmental objectives
unrelated to the suppression of speech.” Time Warner, 93 F.3d at 969
(citing Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662-64 (1994)).
Comcast argues that these important interests have “become less substantial”
because cable operators no longer hold a “bottleneck” monopoly in the
MVPD market. Mot. at 15. This Court, however, rejected the same
argument just last year in Cablevision, 649 F.3d at 711-12. In light of
evidence that “cable operators still have a dominant share of MVPD
subscribers” and “still own significant programming,” the Court held that the
FCC’s decision to extend its program access rules to terrestrially delivered
programming “serves an important governmental interest” by promoting
“fair competition in the video marketplace” even if “vertically integrated
cable companies” no longer “retain a stranglehold on competition
nationally.” Id. at 712 (internal quotation marks omitted).
In addition, the Order does “not burden substantially more speech
than necessary” to achieve the government’s objective. Time Warner, 93
16

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F.3d at 969. It simply requires “that Tennis Channel not be carried in a
discriminatory manner.” Add. 530. This “equal carriage” remedy is
narrowly tailored to prevent the sort of discrimination that unreasonably
restrains Tennis Channel’s ability to compete fairly.8

B.


Comcast Has Not Shown That It Will Be
Irreparably Harmed Absent A Stay.


“‘The basis for injunctive relief in the federal courts has always been
irreparable harm and inadequacy of legal remedies.’” Wisconsin Gas Co. v.
FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (citation omitted). To obtain a
stay, Comcast must demonstrate that the irreparable harm it alleges is “both
certain and great,” “actual and not theoretical.” Id. Comcast has not come
close to meeting this requirement.
Comcast claims that if it does not obtain a stay, its free speech rights
will be violated. Mot. at 16. The mere assertion of a First Amendment
violation, however, does not suffice to establish irreparable harm; “the
moving party must demonstrate some likelihood of a chilling effect on [its]
rights.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 301
(D.C. Cir. 2006). Comcast has failed to do so. As Comcast acknowledges,
it “does carry Tennis Channel.” Mot. at 11. Because Comcast has chosen to

8 Comcast asserts that the Order is “not narrowly tailored” because it
“requires Comcast to ‘pay Tennis Channel any additional compensation for
broader carriage that the parties have already negotiated.’” Mot. at 16
(quoting Add. 525). But the Order does not require broader carriage, just
equal carriage. If Comcast opts to carry Golf Channel and Versus on the
Sports Tier, Tennis Channel would be entitled to no additional
compensation.
17

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do so, “the Order does not compel Comcast to carry any speech that it is
opposed to carrying for any communicative or expressive purpose.” Stay
Order ¶ 38. Moreover, Comcast is unlikely to prevail on its First
Amendment claim. See Part A.3 above. Denial of a stay thus will not cause
it any irreparable First Amendment injury.
Comcast represented to the Commission over six months ago that it
was “engaging in good-faith planning for compliance with and
implementation of” the ALJ’s decision should it be upheld on administrative
review. Stay Order ¶ 39 (citation omitted). Nonetheless, it now complains
that it will face various administrative burdens associated with providing
Tennis Channel broader carriage, including updating its programming guides
and rate cards. Pet. 17-19. These are hardly extraordinary burdens for a
cable operator (much less the largest cable operator in the Nation); they are
part of the day-to-day activities of its business. The record showed that
“Comcast frequently changes its channel lineups and orders nationwide
tiering changes at-will,” Stay Order n.118, and that implementation of the
remedy in this case would require “nothing more than the type of business
decision Comcast makes routinely with many channels.” Id. ¶ 39. A stay
cannot be justified unless Comcast establishes irreparable injury that is “both
certain and great.” Wisconsin Gas, 758 F.2d at 674 (emphasis added).
Comcast has failed to show that the administrative burdens of complying
with the Order – burdens that are common in its line of business and that it
claimed to be preparing to assume months ago – would be so “great” as to
18

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warrant the extraordinary relief it seeks. Moreover, the partial stay of the
Order granted by the FCC’s Office of General Counsel (Stay Order ¶ 44)
removes any “irreparable burdens” on Comcast’s digital systems that do not
currently carry Tennis Channel and allegedly have little to no spare
bandwidth. Mot. at 18.9
Finally, Comcast claims that there is a “significant risk” that it “may
be compelled to pay a higher … fee to Tennis Channel while judicial review
is pending.” Mot. at 19 (emphasis added). This assertion of a “risk” is
speculative on its face and thus cannot justify a stay. See Wisconsin Gas,
758 F.2d at 674 (alleged irreparable injury must be “actual and not
theoretical”). Comcast will not have to pay additional fees to Tennis
Channel if it opts to comply with the Order by moving Golf Channel and
Versus to the Sports Tier. In any event, Comcast has not shown that it
would be barred from recovering any additional fees it pays to Tennis
Channel in the unlikely event that the Court ultimately vacates the Order.10

9 Comcast’s current request for a stay is not advanced by the Commission’s
observation in an earlier order staying the ALJ’s decision pending plenary
review by the Commission that there may be “potential disruption to
consumers and … third-party programmers.” Mot. at 6 (citation omitted).
Those concerns stemmed from the ALJ’s channel-placement remedy –
which the Commission vacated in the Order on review here – and
Comcast’s complaint about being required to move or drop existing channels
to accommodate equal carriage for Tennis Channel – a burden that is
eliminated by the partial stay of the Order. See Stay Order ¶ 44.
10 See United Gas Improvement Co. v. Callery Props., 382 U.S. 223, 229
(1965) (“[a]n agency, like a court, can undo what is wrongfully done by
virtue of its order”).
19

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C.


A Stay Would Harm Tennis Channel And The Public Interest.


Finally, a stay would plainly harm Tennis Channel. The FCC
determined, on a full record, that Comcast violated federal law by
discriminating against Tennis Channel, and that this discrimination
unreasonably restrained Tennis Channel’s ability to compete fairly. Tennis
Channel has been, and continues to be, harmed by Comcast’s refusal to
provide Tennis Channel with the broader carriage it provides Golf Channel
and Versus. A stay would leave Tennis Channel without a remedy for
Comcast’s unlawful discrimination while this case is pending.
A stay would also harm the public interest. Congress enacted Section
616 to promote competition and diversity in programming by preventing
MVPDs from favoring their own networks over unaffiliated networks. The
statute provides for “expedited review” of carriage discrimination
complaints. 47 U.S.C. § 536(a)(4). A stay would thwart Congress’s pro-
competitive goals by denying prompt implementation of Section 616’s
remedies to a programmer that is the victim of unlawful discrimination.

CONCLUSION


The motion for a stay should be denied.

20

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Respectfully
submitted,








Sean A. Lev
General
Counsel








Peter Karanjia
Deputy
General
Counsel








Jacob M. Lewis
Associate
General
Counsel








/s/ James M. Carr






James M. Carr
Counsel

Federal
Communications
Commission
Washington,
D.C.

20554
(202)
418-1762

August 16, 2012


21

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REDACTED


Federal Communications Commission

DA 12-1311


Before the

Federal Communications Commission

Washington, D.C. 20554


In the matter of
)


)

Tennis Channel, Inc.,
)

Complainant
)
MM Docket No. 10-204

)

v.
)
File No. CSR-8258

)
Comcast Cable Communications, LLC,
)
Defendant
)

ORDER


Adopted: August 09, 2012

Released: August 09, 2012


By the General Counsel:

I.

INTRODUCTION

1.
On July 30, 2012, Comcast Cable Communications, LLC (“Comcast”) filed a petition
requesting a stay of the Commission’s Memorandum Opinion and Order in MM Docket No. 10-204. In
the Matter of Tennis Channel, Inc.
, FCC 12-78 (July 24, 2012) (“Order”). The Order, which affirmed in
part and vacated in part an Initial Decision of Chief Administrative Law Judge Richard L. Sippel,1 found
that Comcast had discriminated with regard to carriage against Tennis Channel and in favor of Golf
Channel and Versus on the basis of affiliation in violation of Section 616 of the Communications Act, 47
U.S.C. § 536, and Section 76.1301(c) of the Commission’s rules, 47 C.F.R. § 76.1301(c). As relevant
here, the Order also (a) affirmed the remedy imposed by the ALJ requiring Comcast to provide Tennis
Channel with equal carriage to Golf Channel and Versus, subject to an exemption for certain analog cable
systems operated by Comcast; and (b) vacated the ALJ’s issuance of a remedy requiring Comcast “to
provide Tennis Channel with equitable treatment (vis-à-vis Golf Channel and Versus) as to channel
placement.”2 Comcast seeks a stay of the implementation of the Order pending the completion of judicial
review.3 Tennis Channel filed an opposition to Comcast’s stay petition on August 2, 2012. For the
reasons stated below, with one exception, the Office of General Counsel (hereinafter, “OGC” or “we”)
denies the petition for stay pursuant to authority delegated to it by the Commission.

II.

BACKGROUND

2.
On January 5, 2010, Tennis Channel filed a complaint with the Commission asserting
that Comcast, the nation’s largest distributor of multichannel video programming, discriminated against
Tennis Channel on the basis of its non-affiliation with Comcast, by affording preferential treatment to

1 In the Matter of Tennis Channel, Inc., 26 FCC Rcd 17160 (ALJ 2011)(“Initial Decision”).
2 Id. at 17211 ¶ 120. Although the ALJ did not specifically define what his channel placement remedy required, we
understand it to require Comcast to accord Tennis Channel a channel placement that is very close to that accorded to
Comcast’s affiliated networks (Golf Channel and Versus).
3 Comcast filed a petition for judicial review on August 1, 2012. Comcast Cable Commc’ns, LLC v. FCC, D.C. Cir.,
No. 12-1337.


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Comcast’s own affiliated (and competing) networks – Golf Channel and Versus.4 Since Comcast began
carrying Tennis Channel in 2005, the network has been placed on a premium Sports Tier on the vast
majority of the nearly 700 cable systems operated by Comcast.5 To access this tier, subscribers must pay
an additional monthly charge above what they pay for basic digital cable service. Under its carriage
agreement with Tennis Channel, Comcast may determine the tiers on which it will carry Tennis Channel.
Golf Channel and Versus, Comcast-affiliated networks that Tennis Channel viewed as similarly situated,
generally are offered on channel tiers that are available to all digital subscribers at no additional cost and
reach significantly more of Comcast’s customers than the channel tier on which Comcast’s systems carry
the Tennis Channel. In 2009, Tennis Channel, pointing to recent viewership growth and programming
improvements, asked Comcast to increase its distribution by repositioning it to a tier that had broader
penetration than the Sports Tier. Comcast rejected Tennis Channel’s proposal.
3.
On October 5, 2010, the Media Bureau released an order designating Tennis Channel’s
complaint for a hearing before an administrative law judge.6 The Media Bureau rejected Comcast’s
arguments that Tennis Channel’s complaint was barred by an FCC rule specifying the applicable statute
of limitations for program carriage disputes. The Media Bureau also concluded that Tennis Channel had
established a prima facie case of program carriage discrimination pursuant to Section 616(a)(3) of the
Communications Act and Section 76.1301(c) of the Commission’s rules.7 The ALJ was directed by the
Media Bureau to “develop a full and complete record in the instant hearing proceeding and to conduct a
de novo examination of all relevant evidence in order to make an Initial Decision on each of the
outstanding factual and legal issues” and to do so on an expedited basis.8
4.
The ALJ issued his Initial Decision on December 16, 2011. The ALJ concluded that
Tennis Channel, Golf Channel, and Versus are similarly situated networks.9 The ALJ found it undisputed
that Comcast gave Golf Channel and Versus far more favorable channel placement and broader carriage
than Tennis Channel, noting that a senior Comcast executive had acknowledged that affiliated networks
“get treated like siblings as opposed to like strangers” and receive a “different level of scrutiny” than
unaffiliated providers.10 The ALJ further noted that “[e]very one of [Comcast’s] affiliated networks is
carried on more widely distributed tiers than the Sports tiers,” while it carries “only unaffiliated sports
networks exclusively on the narrowly penetrated Sports Tier.”11 The ALJ rejected Comcast’s arguments
that its differential treatment of the three networks could be explained by factors other than impermissible
discrimination on the basis of Tennis Channel’s unaffiliated status.
5.
The ALJ concluded that Comcast benefits economically by favoring affiliated networks
over unaffiliated networks and that Comcast’s unequal treatment of Tennis Channel adversely affected

4 The Tennis Channel, Inc., Program Carriage Complaint File No. CSR-8258-P, at 2 ¶ 3, filed by Tennis Channel
(Jan. 5, 20l0) (“Complaint”).
5 According to one industry source, Comcast currently operates 676 cable systems. See Warren Communications
News, Inc., Television & Cable Factbook 2012, Vol. 80, Cable Vol. 2, at D-1488.
6 Tennis Channel, Inc. v. Comcast Cable Commc’ns, LLC, 25 FCC Rcd 14149 (MB 2010) ("HDO").
7 Id. ¶ 9.
8 Id. ¶ 23.
9 Initial Decision, 26 FCC Rcd at 17170 ¶ 24.
10 Id. ¶¶ 53-55.
11 Id. ¶ 57
2


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Tennis Channel’s ability to compete fairly in the video programming marketplace.12 Relegating Tennis
Channel to the Sports Tier “greatly diminishes the number of Tennis Channel subscribers which in turn
reduces the amount of its earnings derived from license fees,”13 “hinders the network’s ability to compete
for valuable programming rights,”14 “makes it more difficult for the network to sell advertising,”15 and
diminishes its advertising revenues.16
6.
After taking into account the relevant statutory and regulatory factors, the ALJ ordered
Comcast to pay a forfeiture of $375,000, the maximum fine permitted under the statute.17 He also ordered
Comcast to afford Tennis Channel the same treatment in the terms and conditions of video program
distribution that it provides to its similarly situated affiliates, Golf Channel and Versus.18 The ALJ
required Comcast to carry Tennis Channel at the same level of distribution as Golf Channel and Versus,
although it retained “full discretion in determining the level of penetration it chooses to carry the three
channels.”19 The ALJ also required Comcast “to provide Tennis Channel with equitable treatment (vis-à-
vis
Golf Channel and Versus) as to channel placement.”20
7.
Following our issuance of a brief, interim stay of the Initial Decision on May 2, 2012 to
afford the Commission an opportunity to review the matter,21 the Commission on May 14, 2012 stayed
the Initial Decision on its own motion.22 The Commission concluded that a stay was warranted because
certain aspects of the remedy ordered by the ALJ were unclear. In particular, the Commission noted that
the Initial Decision “imposes a tier placement remedy without providing guidance on questions of
compensation, a matter on which the parties disagree.”23 The Commission also observed that the
“channel placement remedy” imposed by the Initial Decision “is not defined.”24 The Commission
determined that a stay would “preserve the status quo while the Commission has an adequate opportunity
to examine the record and the ALJ’s disposition of each issue closely, and it will avoid potential
disruption to consumers and any affected third-party programmers in the event that the Commission
subsequently reverses or modifies the ALJ’s remedy.”25 The Commission found that a stay pending its

12 Id. ¶ 81.
13 Id. ¶ 82.
14 Id. ¶ 86.
15 Id. ¶ 89.
16 Id. ¶ 91.
17 Id. ¶ 118.
18 Id. ¶ 119.
19 Id. ¶ 119.
20 Id. ¶ 120.
21 Tennis Channel, Inc. v. Comcast Cable Commc’ns, LLC, 27 FCC Rcd 4931 (OGC 2012).
22 In the Matter of The Tennis Channel, Inc., 27 FCC Rcd 5613 (2012)(“Stay Order”). Tennis Channel had filed a
motion to compel compliance with the Initial Decision, which the Commission denied. Id. at 5616 ¶ 6. In addition,
Comcast had filed a conditional motion for stay of the Initial Decision, which the Commission did not rule on but
dismissed as moot. Id.
23 Id. ¶ 5.
24 Id. ¶ 5.
25 Id. ¶ 5.
3


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review of the Initial Decision “will not unduly delay the grant of any relief to which The Tennis Channel
may be entitled.”26 The Commission pointed out in this regard Comcast’s representation that it was
“‘engaging in good-faith planning for compliance with and implementation of the Initial Decision, should
it become effective.’”27
8.
In the Order released July 24, 2012, the Commission found that the record evidence sup-
ported the ALJ’s conclusion that Comcast discriminated with regard to carriage against Tennis Channel
and in favor of Golf Channel and Versus on the basis of affiliation in violation of Section 616 of the Act
and Section 76.1301(c) of the Commission’s rules. The Commission also found that the ALJ’s carriage
remedy was appropriate and consistent with Section 616, the Commission’s rules, and the Media
Bureau’s Hearing Designation Order. However, the Commission rejected the ALJ’s channel placement
remedy as unsupported by the record. The Commission also concluded that the ALJ’s equal-carriage
remedy was consistent with the First Amendment.
9.
Initially the Commission rejected Comcast’s argument that Tennis Channel’s complaint
should have been dismissed by the Media Bureau as barred by the applicable one-year limitations period
in the Commission’s rules.28 Comcast argued that Tennis Channel had filed its complaint more than one
year after entering into the March 2005 carriage agreement with Comcast. However, the Commission
found, consistent with the Media Bureau’s determination in the HDO,29 that the conduct at issue in Tennis
Channel’s complaint was Comcast’s June 2009 refusal to relocate Tennis Channel to a more widely
distributed tier.30 Tennis Channel notified Comcast of its intent to file a complaint in December 2009 and
filed its complaint in January 2010. Both the notification of its intent to file a complaint and the actual
filing, the Commission found, occurred within one year of the conduct that allegedly violated Section
616.31
10.
Turning to the merits, the Commission held that the Initial Decision’s conclusion that
Comcast’s actions with respect to Tennis Channel violated the Act and the Commission rules was
“correct” and “supported by the record.”32 Specifically, the Commission found that “the ALJ correctly
concluded that Comcast both discriminated against Tennis Channel on the basis of nonaffiliation and
discriminated in favor of Golf Channel and Versus on the basis of affiliation.”33 As the Commission
pointed out, either of these forms of discrimination would be sufficient to entail a violation of the statute
and rules so long as the effect of the discrimination was to unreasonably restrain the ability of an
unaffiliated video programming vendor to compete fairly.34
11.
The Commission grounded that conclusion in the record evidence developed in this
proceeding. It found that the record contained “significant circumstantial evidence that Comcast engaged
in a general practice of favoring affiliates over nonaffiliates” and that, “when read in conjunction with the
determination that Tennis Channel, Golf Channel, and Versus were similarly situated but treated

26 Id.
27 Id. n. 22 (quoting Comcast’s Opposition to Tennis Channel’s Petition to Compel at 5 n.11).
28 Order ¶ 28; see 47 C.F.R. § 76.1302(f) (2011).
29 HDO, 25 FCC Rcd at 14154-14159.
30 Order ¶ 29.
31 Id. ¶ 30.
32 Id. ¶¶ 39, 44.
33 Id. ¶ 44.
34 Id., citing 47 U.S.C. § 536(a)(3); 47 C.F.R. § 76.1301(c).
4


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differently without a nondiscriminatory reason,” supported a finding that “Comcast discriminated on the
basis of affiliation.”35 The Commission thoroughly considered Comcast’s arguments that its differential
treatment of Tennis Channel was based on legitimate and nondiscriminatory reasons, and found them
unpersuasive.36
12.
The Commission further held that “Comcast’s discriminatory treatment of Tennis
Channel unreasonably restrained Tennis Channel’s ability to compete in the marketplace” and that in the
absence of such discriminatory treatment Tennis Channel would have significantly more subscribers.37
Comcast’s placement of Tennis Channel affected its ability to compete in a variety of direct and indirect
ways, the Commission concluded. For example, Tennis Channel “collects less in licensing fees than it
would if it reached more MVPD subscribers, cutting into the network’s largest source of revenue.”38 The
Commission also pointed out that the “limitation on Tennis Channel’s audience size and the reduction in
Tennis Channel’s income make it difficult for the network to acquire programming rights,” and that
“Comcast’s limited distribution of Tennis Channel has also discouraged advertisers from placing
advertisements on the network and consequently reduced advertising revenues.”39 The Commission
concluded that these “harms are of such a magnitude that they clearly restrain Tennis Channel’s ability to
compete fairly with similarly situated networks.”40
13.
Tennis Channel was also unreasonably restrained in its ability to compete, the Commis-
sion found, by Comcast’s discrimination on the basis of affiliation in favor of Golf Channel and Versus.41
“The advantages that Comcast provides to its affiliated networks, both directly and through its carriage
decisions, support our finding that Comcast’s discrimination against Tennis Channel was unreasonable
and restrained Tennis Channel’s ability to compete in the marketplace.”42
14.
The Commission rejected Comcast’s contention that the harms to Tennis Channel are
“‘highly generalized and speculative’” and the sort that will “‘be present in every case in which a network
seeks broader distribution by an MVPD.’”43 To the contrary, the Commission explained, “[t]he harms
inflicted upon Tennis Channel were not simply the consequence of its inability to obtain broader carriage,
but as the entirety of the evidence in the record demonstrates, were a consequence of Comcast’s
discrimination in favor of its own similarly situated affiliates with which Tennis Channel competes for
advertisers, audience, and, in the case of Versus, programming.”44 In view of Comcast’s position as the
nation’s largest MVPD, the harm to Tennis Channel amounted to a loss of access to a significant number
of subscribers.45

35 Id. ¶ 45.
36 See id. ¶¶ 68-82.
37 Order ¶ 83.
38 Id. ¶ 84.
39 Id.
40 Id.
41 Id. ¶ 85.
42 Id.
43 Id. ¶ 86.
44 Id.
45 Id.
5


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15.
The Commission also found no basis for Comcast’s argument that, even if it did not carry
Tennis Channel at all, Comcast customers amount to less than 24 percent of the MVPD market, leaving
the rest of the market open to Tennis Channel. The Commission noted its finding in a prior proceeding
that “‘Comcast’s extensive cable distribution network affords it the ability to use its video distribution
market position to harm other competing video programming firms and harm competition in video
programming.’”46 Here, the Commission observed that an “MVPD that discriminates against a video
programming vendor by limiting the vendor’s access to nearly a fourth of the entire market and to a
significant percentage of subscribers in major regional markets, while giving similarly situated affiliated
competitor networks broad access is clearly restraining the vendor’s ability to compete.”47
16.
On one issue, however, the Commission agreed with Comcast. It concluded that “the
record does not sufficiently establish that Tennis Channel’s ability to compete fairly was unreasonably
restrained by its channel placement.”48 Consequently, the Commission vacated the channel placement
remedy ordered by the ALJ, but otherwise affirmed the remedies imposed by the ALJ.49

III.

DISCUSSION

17.
In determining whether to stay the effectiveness of one of its orders, the Commission
applies the four-factor test established in Virginia Petroleum Jobbers Ass’n v. FPC, as modified in
Washington Metropolitan Area Transit Comm’n v. Holiday Tours, Inc.50 Under this standard, a petitioner
must demonstrate that: (1) it is likely to prevail on the merits; (2) it will suffer irreparable harm if a stay is
not granted; (3) other interested parties will not be harmed if the stay is granted; and (4) the public interest
favors granting a stay.51 The relative importance of the four criteria will vary depending on the circum-
stances of the case,52 but a showing of irreparable injury is generally a critical element in justifying a
request for stay of an agency order.53
18.
In this case, we conclude that Comcast has satisfied none of the four factors in the stay
calculus. Accordingly, with one exception discussed below, we find that a stay is not warranted and deny
the petition.

A.

Comcast Is Unlikely to Prevail on the Merits.

19.
Comcast has failed to show that it would likely prevail on the merits of its judicial
challenge to the Commission’s Order. Comcast raises constitutional, statutory, administrative law, and

46 Id. ¶ 87, quoting Applications of Comcast Corp., General Elec. Co. and NBC Universal, Inc. for Consent to
Assign Licenses and Transfer Control of Licenses
, 26 FCC Rcd 4238, 4284-85 ¶ 116 (2011).
47 Id.
48 Id. ¶ 91.
49 Id. ¶ 110.
50 Virginia Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958); Washington Metro. Area Transit
Comm’n v. Holiday Tours, Inc.
, 559 F.2d 841, 843 (D.C. Cir. 1977).
51 Virginia Petroleum, 259 F.2d at 925; Holiday Tours, 559 F.2d at 843; see also Winter v. Natural Res. Def. Coun-
cil, Inc.
, 555 U.S. 7 (2008); In the Matter of Standardized & Enhanced Disclosure Requirements for Television
Broadcast Licensee Public Interest Obligations
, DA 12-1122 ¶ 6 (MB July 12, 2012).
52 See, e.g., Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009).
53 See Winter, 555 U.S. at 22 (“Our frequently reiterated standard requires plaintiffs seeking an injunction to demon-
strate that irreparable injury is likely in the absence of an injunction.”); see also Wisconsin Gas Co. v. FERC, 758
F.2d 669, 674 (D.C. Cir. 1985) (denying requests for stay after considering only the second factor) (“Wisconsin
Gas
”).
6


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evidentiary claims. We find none of Comcast’s arguments persuasive, especially in view of the standard
of judicial review applicable to this case as discussed below.
1.

The Statute of Limitations Rule

20.
Comcast’s contention that Tennis Channel’s complaint was untimely under the
applicable statute of limitations rule has been rejected twice, first by the Media Bureau in the HDO and
then by the Commission in the Order. We find nothing new or more persuasive in the argument that it
repeats once more in its stay petition.54
21.
Pursuant to the Commission’s rules, a programmer has a one-year period in which to file
a program carriage complaint that commences upon the occurrence of one of three specified events, the
third one of which requires notification that the programmer “intends to file a complaint with the
Commission based on violations of one or more of the rules contained in this section.”55 The
Commission rejected Comcast’s argument that Tennis Channel’s complaint was late because it was filed
more than a year after Tennis Channel entered into the March 2005 carriage agreement with Comcast.
The Commission reasoned that the conduct challenged in Tennis Channel’s complaint was Comcast’s
refusal in June 2009 to relocate Tennis Channel to a more widely distributed tier. Thus, the operative date
was June 2009, and Tennis Channel’s December 2009 notification to Comcast of its intent to file a
complaint (as well as its January 2010 filing of the complaint itself) occurred well within one year of the
conduct that violated the statute.56
22.
Comcast repeats its claim that the “complaint assails decisions made over seven years
ago” and that the rule’s first “trigger” relating to that 2005 contract applies to bar Tennis Channel’s 2010
complaint.57 However, as the Commission found, “the first trigger only applies when a contract is alleged
to violate the rules. Tennis Channel makes no such allegation about the March 2005 contract.”58 The
gravamen of Tennis Channel’s complaint is not that the parties’ carriage agreement is itself unlawful;
rather, it is that Comcast’s subsequent action violates the program carriage statute and the Commission’s
implementing rules. As the Commission explained, “Tennis Channel’s complaint does not allege that the
2005 contract was improperly discriminatory, but instead focuses on Comcast’s 2009 conduct.”59

54 Pet. at 5-8.
55 47 C.F.R. § 76.1302(f) (2011):
Any complaint filed pursuant to [Section 76.1302] must be filed within one year of the date on
which one of the following events occurs:
(1) The [MVPD] enters into a contract with a video programming distributor that a party alleges
to violate one or more of the rules contained in this section; or
(2) The [MVPD] offers to carry the video programming vendor’s programming pursuant to terms
that a party alleges to violate one or more of the rules contained in this section, and such offer to
carry programming is unrelated to any existing contract between the complainant and the
multichannel video programming distributor; or
(3) A party has notified a [MVPD] that it intends to file a complaint with the Commission based
on violations of one or more of the rules contained in this section.
Id.
56 Order ¶ 29. The Media Bureau reached the same conclusion in the Hearing Designation Order. HDO ¶ 11.
57 Pet. at 5, citing 47 C.F.R. § 76.1302(f)(1) (2011).
58 Order ¶ 31.
59 Id. ¶ 32.
7


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23.
The Commission also considered and reasonably rejected Comcast’s contention that its
reading of its regulation was “implausible” and “renders subsections (f)(1) and (f)(2) superfluous”
because it purportedly “would allow any long-dead claim to be resuscitated simply by asking to reopen
settled negotiations.”60 As the Commission explained, “[t]his argument fails to take into account the fact
that under the March 2005 contract, Comcast had discretion as to Tennis Channel’s carriage. Comcast
has an obligation to exercise that discretion consistent with Section 616. . . . In other words, Tennis
Channel was not trying to demand a unilateral change in the existing terms of its contract with Comcast; it
was asking that the existing contract be performed – that Comcast exercise its contractual discretion –
consistent with its obligations under Section 616.”61
24.
The Commission explained that Tennis Channel’s complaint was filed within the statute
of limitations “[b]ecause the allegedly unlawful conduct at issue here occurred within one year of the
filing of the complaint.”62 In response to Comcast’s claim that the Commission’s reading of its statute of
limitations rule results in an “unlimited” limitations period, the Commission made clear that it read the
rule, “consistent with the doctrine of laches,” to “require notification of an intent to file a complaint
within a reasonable time period of discovery of the allegedly unlawful conduct.”63 Comcast complains
that this amounts to “graft[ing] a new, unwritten, and undefined ‘laches’ doctrine onto the regulation.”64
However, the Commission emphasized that its decision here was not dependent on a laches limitation.
Rather, Tennis Channel acted promptly after its June 2009 request, and it is simply wrong for Comcast to
allege that a “long-dead claim can be resuscitated simply by asking to reopen settled negotiations.”65
Indeed, it was the specific facts relevant to Tennis Channel’s 2009 request for equal carriage – and
Comcast’s refusal of that request – that formed the basis for the network’s discrimination complaint. In
all events, the Commission did not rely on any laches theory here, and thus, even if there were basis for
Comcast’s complaint, it is irrelevant in this case.
25.
Comcast’s claim is particularly unlikely to prevail on judicial review, as it rests on the
premise that the Commission has misread its own rules. An agency’s interpretation of its own regulations
is controlling unless it is “plainly erroneous or inconsistent with the regulation[s].”66 The Commission
fully explained in the Order the reasoning supporting its interpretation of the statute of limitations rule at
issue in this case as well as the basis for rejecting Comcast’s contrary interpretation. Because that
interpretation was, at a minimum, reasonable, Comcast’s is unlikely to prevail on this issue on review.
2.

The Commission’s Application of Section 616

26.
Comcast argues that the Order “misapplies and misinterprets Section 616.”67 With this
claim, as with its statute of limitations claim, Comcast faces a high hurdle. The Commission’s
interpretation of a statutory provision that Congress has assigned it to enforce is entitled to substantial

60 Pet. at 6
61 Order ¶ 33.
62 Id. n.105.
63 Id.
64 Pet. at 6.
65 Pet. at 11.
66 Talk Am. Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2261 (2011) (internal quotation marks omitted); see also
AT&T Corp. v. FCC,
448 F.3d 426, 431 (D.C. Cir. 2006) (the FCC’s “interpretation of its own orders and rules is
entitled to substantial deference”).
67 Pet. at 8.
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judicial deference.68 In the specific context of FCC orders involving program carriage complaints, one
court has recently held that “[r]eview under this standard is highly deferential, with a presumption in
favor of finding the agency action valid.”69 Beyond that, most of Comcast’s argument is really an attempt
to have a court reweigh the evidence presented to the Commission.70 Review of those kinds of
determinations is subject to the “arbitrary and capricious” and “substantial evidence” standards of the
Administrative Procedure Act.71 Such review is “narrow,”72 and the determination of whether the
agency’s decision is supported by substantial evidence requires “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”73 Especially in
light of these deferential standards of review, Comcast’s argument that the Order violated Section 616
fails to demonstrate that it is likely to prevail on review.
27.
For example, Comcast claims that Congress intended in enacting Section 616 to
narrow[] the application of antitrust principles by the Commission in the video-programming market”
and grant the Commission only limited authority “to remedy particularly severe forms of competitive
harm.”74 The Commission fully considered and properly rejected this argument in the Order as
inconsistent with both the text and legislative history of the provision: “Section 616 would serve no
function if it existed simply as a redundant analogue to antitrust law. Nothing in the text of Section 616
indicates an intent to mimic existing antitrust law or the ‘essential facilities’ doctrine. The legislative
history, moreover, expressly repudiates such a design.”75
28.
Comcast further contends that there was not substantial evidence to support the
Commission’s findings.76 That position does not hold up when viewed against the extensive record cited
in both the Order and the Initial Decision. For example, the Commission found Tennis Channel is
similarly situated with Comcast’s affiliated channels, pointing out that they target the same viewers,
compete for the same advertisers, and have almost identical ratings.77 The Commission found that every
sports network in which Comcast has an ownership interest is carried on a tier that is more broadly
distributed than the tier on which Tennis Channel is carried, and “[e]very single nationally distributed
network carried exclusively on the Sports Tier [including Tennis Channel] is unaffiliated with
Comcast.”78 The record included testimony from Comcast’s former Chief Operating Officer that
Comcast’s affiliated networks are “treated like siblings as opposed to like strangers,” and that affiliates
“get a different level of scrutiny” than unaffiliated networks.79 On the basis of this record evidence, the
Commission found that Comcast had treated Tennis Channel differently from Golf Channel and Versus

68 See, e.g., Kay v. FCC, 393 F.3d 1339, 1343 (D.C. Cir. 2005) (“we accord a substantial measure of deference to the
Commission's interpretation” of telecommunications statutes).
69 TCR Sports Broad. Holding, L.L.P. v. FCC, 679 F.3d 269, 274 (4th Cir. 2012).
70 See, e.g., Pet. at 8-12.
71 5 U.S.C. § 702.
72 In re Core Communications, Inc., 455 F.3d 267, 277 (D.C. Cir. 2006).
73 Environmental Def. Fund v. EPA, 598 F.2d 62, 82 (D.C. Cir. 1978)(internal quotes omitted).
74 Pet. at 9-10.
75 Order ¶ 41.
76 Pet. at 10-12.
77 Order ¶¶ 52-55; see also Initial Decision ¶¶ 25-26, 37, 41, 43, 45-48.
78 Order ¶ 47; see also Initial Decision ¶ 57.
79 Order ¶ 46; see also Initial Decision ¶ 55.
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on the basis of affiliation, rejecting specifically and in detail Comcast’s claimed reasons for the
differential treatment.80
29.
Comcast argues that its “treatment of Tennis Channel was within the industry
mainstream,” citing the opinion of two dissenting Commissioners.81 Actually, Comcast’s claim is that in
determining the “industry mainstream,” the Commission should have viewed the industry more narrowly
and should not have considered Tennis Channel’s carriage by two satellite video providers, DirecTV and
DISH Network, which have equity interest in Tennis Channel. The Commission addressed this argument,
explaining that it is “reasonable in assessing whether Comcast discriminated on the basis of affiliation to
consider the treatment of the three networks at issue by the MVPD market in general, including
Comcast’s principal competitors, DirecTV and DISH—which are, after Comcast, the second and third
largest MVPDs in the Nation. We disagree with the contention that we should have excluded those
MVPDs from our comparison of penetration rates simply because they had an equity interest in Tennis
Channel.82 The Commission determined that it was “appropriate to view the market as a whole, and
include in the comparison MVPDs that Comcast sees as its chief competitors.”83 The Commission added,
however, that even if it adopted Comcast’s approach or entirely excluded the consideration of how other
MVPDs treated Tennis Channel it would reach the same conclusion that Comcast discriminated against
Tennis Channel on the basis of affiliation based on the other substantial evidence in the record.84 Thus,
even if Comcast’s argument were correct, it would be unlikely to prevail on the merits because substantial
evidence supports the Commission’s alternative holding.
30.
In addition, the Commission discussed the record basis for its conclusion that Comcast’s
discriminatory treatment unreasonably restrained Tennis Channel’s ability to compete in the marketplace
by impairing its ability to acquire programming, sell advertising and collect advertising revenue, and
conversely provides its affiliates Golf Channel and Versus a significant competitive advantage.85 Based
on the extensive record developed in this proceeding and the Commission’s careful analysis, there is no
basis to conclude that Comcast has a likelihood of succeeding on the merits of its argument that there is
not substantial evidence to support the Commission’s decision here.
31.
Finally, Comcast claims that the Commission applied an incorrect standard in
adjudicating Tennis Channel’s complaint by “reading the unreasonable-restraint requirement out of the
statute altogether.”86 Comcast contends that the standard adopted by the Commission “will be present in
every case in which a network seeks broader carriage through a claim of affiliation-based discrimination,
rendering the unreasonable-restraint requirement of Section 616 a nullity.”87 As the Commission fully
explained in the Order, there is no basis for Comcast’s “narrow interpretation” of Section 616: “The
harms inflicted upon Tennis Channel were not simply the consequence of its inability to obtain broader
carriage, but as the entirety of the evidence in the record demonstrates, were a consequence of Comcast’s
discrimination in favor of its own similarly situated affiliates with which Tennis Channel competes for
advertisers, audience, and, in the case of Versus, programming. Because Comcast is the nation’s largest

80 Order ¶¶ 68-82.
81 Pet. at 11.
82 Order ¶ 74; see also ¶ 71 and n. 218.
83 Id. ¶ 71.
84 Id. ¶ 75.
85 Order ¶¶ 83-87.
86 Pet. at 8.
87 Id. 9.
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MVPD, that harm amounted to a loss of access to [REDACTED] subscribers.”88 The Commission also
found, based on the record evidence, that “Comcast’s limited distribution of Tennis Channel” made it
“difficult for the network to acquire programming rights” and “discouraged advertisers from placing
advertisements on the network,” thereby reducing Tennis Channel’s advertising revenues.89
3.

The First Amendment

32.
As it has argued throughout this proceeding, Comcast once again asserts that the remedy
adopted in the Order to address its statutory violations is a “nakedly content-based” restriction on its
speech that violates the First Amendment.90 The Commission and courts have repeatedly considered, and
rejected, similar arguments advanced by cable operators.91 In the Order the Commission found that while
the equivalent carriage remedy did “implicate[] Comcast’s First Amendment rights,” well-settled law
confirms that intermediate scrutiny under the First Amendment is the appropriate standard.92 A content-
neutral regulation 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.”93 The Commission’s action in this proceeding easily satisfies
that standard.
33.
Comcast does not directly challenge the government interest at stake. As the
Commission pointed out, the courts have consistently held that the government interest reflected in
Congress’ adoption of provisions such as those in Section 616 was “‘the promotion of fair competition in
the video marketplace,’” a goal that “‘both furthers an important government interest and is unrelated to
the suppression of free expression.’”94 However, Comcast asserts that cable operators no longer have
“bottleneck or gatekeeper[] control,” and that these interests therefore are no longer served by program
carriage regulation.95 In a recent proceding, the Commission directly addressed that issue and specifically
rejected the same argument advanced by Comcast here, concluding that “substantial government interests
in promoting diversity and competition remain.”96 The Commission added, “because MVPDs have an

88 Order ¶ 86.
89 Id. ¶ 84.
90 Pet. at 13.
91 See, e.g., In the Matter of Review of the Commission’s Program Access Rules, 25 FCC Rcd 746, 775 (2010), aff’d
in relevant part
, Cablevision Systems Corp. v. FCC, 649 F.3d 695, 710, 717-18 (D.C. Cir. 2011); Time Warner
Entm’t Co. v. FCC,
93 F.3d 957, 977–78 (D.C. Cir. 1996).
92 Order ¶ 98. In the Order the Commission agreed with Comcast that its First Amendment rights are implicated by
the carriage remedy, rejecting the ALJ’s conclusion that the carriage remedy did not implicate Comcast’s First
Amendment rights at all because it was free not to carry Tennis Channel if it also decided not to carry Golf Channel
or Versus. Id. ¶97. The Commission also rejected Tennis Channel’s argument that Comcast had articulated no
speech interest implicated here because Comcast already carries Tennis Channel on its systems. Id. n.310. The
Commission found that the equivalent carriage remedy “impacts Comcast’s selection of networks on its cable
systems.” Id.
93 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189 (citing United States v. O’Brien, 391 U.S. 367, 377 (1968));
see also Time Warner, 93 F.3d at 978.
94 Order ¶ 98, quoting Time Warner, 93 F.3d at 978.
95 Pet. at 14.
96 In the Matter of Revision of the Commissions Program Carriage Rules Leased Commercial Access; Dev. of
Competition & Diversity in Video Programming Distribution and Carriage
, 26 FCC Rcd 11494, 11517-18 ¶ 33
(2011) (“Program Carriage Order”), petitions for review pending, Time Warner Cable Inc. v. FCC, Nos. 11-4138 &
11-1512 (2d Cir. filed Oct. 11, 2011); see also Order ¶ 99. The D. C. Circuit has recently rejected similar
(continued....)
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incentive to shield their affiliated programming vendors from competition with unaffiliated programming
vendors for viewers, advertisers, and programming rights, the program carriage rules promote
competition in the video programming market by promoting fair treatment of unaffiliated programming
vendors.”97 The Commission also observed in that order that “the number of cable-affiliated networks
recently increased significantly after the merger of Comcast and NBC Universal, thereby highlighting the
continued need for an effective program carriage complaint regime.”98
34.
There is no merit to Comcast’s contention that the carriage remedy is content-based
because the Commission considered whether Tennis Channel is “similarly situated” with Comcast’s
affiliates, Golf Channel and Versus. As the Commission explained, 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.’”99 That was not the case here, the
Commission explained, where the agency had “considered the content of the three networks solely for
purposes of conducting a comparative analysis to determine whether Comcast discriminated ‘on the basis
of affiliation or nonaffiliation’ by affording preferential treatment to affiliated networks that are similarly
situated to Tennis Channel.”100 The Commission emphasized that the “particular content of the
programming at issue was irrelevant; the same comparative analysis would apply regardless of the
specific type of programming involved.”101 Comcast’s claims that the Commission’s comparative analysis
of these three channels constituted content-based regulation are mistaken. Nothing in the Commission’s
“approach, or the statutory provision and Commission rule that undergirded it, favors or disfavors any
particular speech ‘because of [agreement or] disagreement with the message it conveys.’”102
35.
Moreover, as Tennis Channel points out in its opposition, “the ‘similarly situated’
requirement actually protects Comcast by heightening the complainant’s burden for establishing
discrimination.”103 Indeed, in this proceeding Comcast introduced expert testimony “to argue that Tennis
Channel, Golf Channel, and Versus are not similar in content terms. Now that Comcast has failed on this
point . . . Comcast cannot complain that the Commission’s consideration of its own expert’s testimony
violates the First Amendment.”104

(...continued from previous page)
arguments, concluding that cable operators continue to exercise control in certain geographic areas. See
Cablevision,
649 F.3d at 712. In its 2011 Order, the Commission also rejected reliance on Comcast Corp. v. FCC,
579 F.3d 1 (D.C. Cir. 2009), finding that the court’s language in that case regarding the extent of cable operators’
market control involved a different rule, and the rationale was inapplicable to the program carriage area. Program
Carriage Order
¶ 33; see Pet. n.54, citing Comcast Corp. v. FCC.
97 Order ¶ 99.
98 Program Carriage Order ¶ 33, citing Comcast Corp., Gen. Elec. Co. and NBC Universal, Inc., 26 FCC Rcd 4238,
4238, ¶ 1 and 4284-85, ¶ 116 (2011).
99 Order ¶ 100, quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994) (“Turner I”) (quoting Ward v.
Rock Against Racism
, 491 U.S. 781, 791 (1989)).
100 Id.
101 Id.
102 Order ¶ 100, quoting Turner I, 512 U.S. at 642 (quoting Ward, 491 U.S. at 791). See also Ward, 491 U.S. at 791
(“The government’s purpose is the controlling consideration. A regulation 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.”)
103 Tennis Channel Opp. at 11.
104 Id.
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36.
The Commission fully explained that the remedy in this case satisfies intermediate
scrutiny and does not burden substantially more speech than necessary.105 Comcast complains that the
Commission ignored a “less burdensome remedy than the one it imposes – requiring Comcast to move
Tennis Channel only to the Digital Preferred Tier,” a program tier that provides broader carriage than the
Sports Tier but narrower carriage than the Digital Basic Tier on which Golf Channel and Versus are
carried.106 The Commission explained that it based its conclusion regarding Comcast’s discrimination on
the cable operator’s decision to relegate Tennis Channel to the Sports Tier. The Commission expressed
no opinion on the hypothetical whether the unreasonable-restraint prong of Section 616 would have been
satisfied if Comcast had placed Tennis Channel on the Digital Preferred Tier since those were not the
facts before it.107 “All we say here is that if Comcast had carried Tennis Channel more broadly, the
question whether Tennis Channel was unreasonably restrained in its ability to compete would be a
different one and might yield a different answer. We think it appropriate and prudent to focus our
conclusions on the facts at hand, rather than speculating on the proper analysis of facts not presented in
this case.”108 To the extent that Comcast argues in its petition that the Commission had an obligation to
adopt a theoretically less speech-restrictive remedy, the Supreme Court has made clear that intermediate
scrutiny does not require the least restrictive means to advance the government’s interest.109

B.

Comcast Would Not Suffer Irreparable Harm In The Absence Of A Stay.

37.
Comcast contends that it would be irreparably harmed if a stay is not granted, focusing
on two alleged injuries. First, it asserts that the Order violates its First Amendment rights and that “[t]hat
alone justifies a stay.”110 Second, Comcast asserts that, absent a stay, the Order will “impose immediate,
substantial burdens on Comcast that cannot be undone if the Order is overturned on judicial review.”111
These claims do not suffice to demonstrate irreparable harm.
38.
The mere assertion of a First Amendment violation, without more, does not demonstrate
irreparable injury.112 As the Commission found in the Order, and as discussed above, Comcast has failed
to show that its free speech rights under the First Amendment were infringed by the requirement that
Comcast provide Tennis Channel with carriage equivalent to the level of carriage that Comcast affords to
its own affiliates (Golf Channel and Versus). Indeed, we note that, for the overwhelming majority of
cable systems at issue in this case, Comcast has voluntarily chosen to carry Tennis Channel; the Order
does not compel Comcast to carry any speech that it is opposed to carrying for any communicative or
expressive purpose. Further, the Order explained in detail that the Commission’s program carriage rules
are content-neutral (and were applied in a content-neutral manner), and that their application easily

105 See Order ¶ 104 (“the remedy requires no more than that Tennis Channel not be carried in a discriminatory
manner, and does not burden substantially more speech than necessary to achieve that end”).
106 Pet. at 15.
107 Order n. 290.
108 Id.
109 See Turner I , 512 U.S. at 662 (To survive intermediate scrutiny “a regulation need not be the least speech-
restrictive means of advancing the Government’s interests.”)
512 U.S. at 662.
110 Pet. at 18.
111 Id.
112 Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 301 (D.C. Cir. 2006) (“[T]he assertion of First
Amendment rights does not automatically require a finding of irreparable injury . . . . Rather the plaintiffs must show
‘a chilling effect on free expression.’”).
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satisfies intermediate scrutiny.113 As the Commission explained, the remedy imposed likewise furthers
the government’s substantial interest in promoting fair competition and diversity, and does so in a manner
that does not burden substantially more speech than necessary.114 Comcast thus has failed to show that its
First Amendment rights will be injured in the absence of a stay or that it is likely to succeed on the merits
of any appeal on those grounds.
39.
Apart from Comcast’s claims regarding injuries it may suffer to the extent it is required
to launch Tennis Channel on cable systems with little or no available bandwidth that do not currently
carry that network (which we separately address below), Comcast’s asserted economic injuries stemming
from the Order’s equal-carriage requirement fall far short of demonstrating the sort of “irreparable” harm
that would justify a stay of the Order. Comcast claims that it will face what are essentially a variety of
administrative burdens associated with providing Tennis Channel broader carriage.115 These include
updating websites, databases, and programming guides, and producing new channel lineup cards and local
rate cards.116 Comcast asserts that it would be required “to allocate substantial resources, including the
time and efforts of over one hundred national and regional employees.”117 However, as Tennis Channel
explains in its opposition, “[i]mplementation of this relief requires nothing more than the type of business
decision Comcast makes routinely with many channels.”118 Comcast is the country’s largest MVPD
(bigger than any other cable operator or satellite provider), with over 22 million video subscribers and
85,000 employees associated with its cable communications business.119 With that context in mind,
Comcast’s complaint about the administrative burdens of providing Tennis Channel broader carriage in
compliance with the Order do not come close to demonstrating irreparable injury under prevailing
precedents, which do not recognize mere economic loss, even if irretrievable, as constituting irreparable
injury unless there is also a showing that the loss is sufficiently grave to threaten the destruction of the
business.120 Moreover, Comcast represented in January 2012 that it was “engaging in good-faith planning
for compliance with and implementation of the Initial Decision, should it become effective.”121 That
planning should have limited the burden that Comcast now faces. Notwithstanding that Comcast will
face some administrative burdens in complying with the Order, it has failed to demonstrate that those
burdens are so great in the context of Comcast’s substantial resources as to warrant a finding of irrepar-
able injury.
40.
We find no merit in Comcast’s complaint that these asserted administrative burdens are
exacerbated because it “is required to begin suffering these burdens immediately to satisfy the Order’s
direction to provide broader carriage to Tennis Channel within 45 days.”122 Comcast has been on notice
since the Initial Decision in this proceeding – issued more than seven months ago – that it could be

113 Order ¶¶ 97-106.
114 Id. ¶.104.
115 Comcast asserts that its only “practical” choice for compliance with the Order is to provide Tennis Channel with
broader carriage equivalent to Golf Channel and Versus. Pet. at 18.
116 Id. at 19.
117 Id. at 19.
118 Tennis Channel Opp. at 13. Tennis Channel pointed to record evidence establishing “that Comcast frequently
changes its channel lineups and orders nationwide tiering changes at-will.” Id. at 15.
119 Comcast 2011 Annual Report Form 10-K at 2, 28.
120 See Wisconsin Gas Co., 758 F.2d at 674; Gulf Oil Corp. v. Dep't of Energy, 514 F.Supp. 1019, 1026
(D.D.C.1981).
121 Comcast Opp. to Tennis Channel Pet. to Compel Compliance at 5 n.11 (Jan. 25, 2012).
122 Pet. at 19.
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required to take this action. Indeed, as noted, Comcast represented in January 2012 that it was “engaging
in good-faith planning for compliance with and implementation of the Initial Decision, should it become
effective.”123 In its May 2012 Stay Order, the Commission took note of Comcast’s undertaking and
underscored: “We expect that Comcast will continue its efforts in this regard notwithstanding our stay.”124
Having assured the Commission months ago that it was engaged in “good-faith planning” to comply with
the requirement that the Order has imposed, Comcast cannot plausibly claim surprise that the agency
expects it to do what it has said it was already planning to do.
41.
Comcast’s claim that it will suffer harm from the “inevitable viewer confusion” that
would result from its compliance with the Order is particularly unpersuasive.125 The consequence of
Comcast’s complying with the Order is that many more of its cable customers will receive Tennis
Channel. Rather than confusion, we expect that the likely reaction would be pleasant surprise. As the
Commission’s Enforcement Bureau observed in response to Comcast’s prior stay petition in this
proceeding, “there is no merit to Comcast’s claim that frustration and confusion among its viewers
supports a stay of the [carriage remedy]. Whether there would be any such confusion or frustration at all
is speculative, given that cable companies modify their channel lineups with relative frequency.”126 In
any event, Comcast does not attempt to quantify the alleged “viewer confusion,” and we find no basis in
Comcast’s petition to support its claim that addressing such confusion as may arise will impose a
substantial burden.
42.
Broadly asserting that “consumer confusion” could lead to “loss of goodwill,”127
Comcast speculates that subscribers “who begin receiving Tennis Channel under the Order could be
displeased – and, at a minimum, confused – if access to Tennis Channel were suddenly rescinded” in the
event that Comcast prevails in court.128 This claim is insubstantial. Those subscribers who already
receive Tennis Channel on Comcast’s Sports Tier will experience no material change; regardless of what
happens in the litigation, they will continue to receive that network. As for those customers who
subscribe to Comcast’s Digital Starter Tier or Expanded Basic Tier (but not the Sports Tier), they will
receive Tennis Channel while the litigation is pending, and will continue to receive the network if the
Commission’s order is affirmed on appeal. In the unlikely event that the Commission’s order is
overturned on judicial review, those subscribers would be returned to the same position they were in
before the Commission’s order. Under either scenario, Comcast will not suffer irreparable harm.
43.
Finally, Comcast contends that the “significant risk” that it “may be compelled to pay a
higher . . . fee to Tennis Channel” “magnifie[s]” the harms it is facing.129 A stay petitioner must
demonstrate that the injury is “both certain and great,” “actual and not theoretical.”130 Comcast’s
complaint about increased license fees it may be required to pay Tennis Channel under the parties’
existing contract fails this test. The Commission addressed the license fee issue in the Order: “The ALJ
did not prescribe specific license fees, and we decline to do so here. . . . [T]o the extent that Comcast

123 Comsat Opp. to Tennis Channel Pet. to Compel Compliance at 5 n.11 (Jan. 25, 2012).
124 Stay Order, 27 FCC Rcd at 5616 n.22 (emphasis added).
125 Pet. at 19-20.
126 Enforcement Bureau Comments on Comcast Conditional Pet. for Stay at 3 ¶ 6 (Feb. 6, 2012).
127 Pet. at 20.
128 Pet. at 21.
129 Pet. at 21 (emphasis added). We note that Comcast could comply with the carriage remedy without paying any
additional fees to Tennis Channel. See Order ¶ 90 (the remedy requires only equal treatment, and Comcast could
comply by repositioning its affiliated networks).
130 Wisconsin Gas, 758 F.2d at 674.
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moves Tennis Channel to a more broadly distributed tier, Comcast must pay Tennis Channel any
additional compensation for broader carriage that the parties have already negotiated. To the extent the
existing contract does not state how Tennis Channel should be compensated for broader carriage, we
expect the parties to negotiate appropriate pricing terms.”131 It is open to question whether Comcast’s
payment of license fees to Tennis Channel pursuant to an existing contract that the parties freely
negotiated could be deemed an injury to Comcast at all. To the extent that it is, Comcast has fallen far
short of demonstrating that the injury it claims to face is “both certain and great,” “actual and not
theoretical.” That is particularly so because, even if Comcast were correct in contending that the Order
requires it to pay additional licensing fees, Comcast has no shown that it would be barred from recovering
those additional fees in the unlikely event that the Order is vacated on judicial review.132
44.
Comcast Systems With Little to No Spare Bandwidth That Are Not Currently Carrying
Tennis Channel. Comcast claims that it will face a significant burden in complying with the Order on a
small number of its systems that provide service to a very small proportion of it subscribers. These are
systems that “do not currently carry Tennis Channel at all and that have little to no spare bandwidth
available to launch new networks.”133 These systems were not the principal focus of Comcast’s
arguments before the ALJ and the Commission. Comcast asserts that in order to carry Tennis Channel on
these systems, it “likely will be required to choose among several highly burdensome alternatives,
including making large economic investments to increase channel capacity on many of these systems –
investments that are not economically feasible and that Comcast would not otherwise make – delaying the
launch of new networks, degrading the quality of existing services, or even ceasing to carry some well-
established networks altogether.”134 We believe the question whether Comcast will face significant
burdens complying with the Order for these very small systems is a close one. Thus, in an effort to
minimize any burden on Comcast while at the same time providing Tennis Channel with an effective
remedy for Comcast’s unlawful discrimination, on the specific facts of this case, we have determined in
the exercise of our equitable discretion to stay the effectiveness of the Order only as to these cable
systems pending review by a court of appeals. Critical to our determination is that because of the very
small number of systems and subscribers involved, grant of the stay will not deprive Tennis Channel of
an effective remedy for Comcast’s carriage discrimination against it. We emphasize, in addition, the
limited nature of this action. First, it applies only to the small number of specific systems Comcast
describes in its stay petition (and accompanying declarations) that do not currently carry Tennis Channel
and have inadequate bandwidth to add a new channel.135 Comcast is directed to provide to Tennis
Channel and to the Commission’s General Counsel a list specifically identifying the subject systems
within five days of the date of release of this order. Failure to provide that information in a timely
manner will result in automatic lifting of the stay without the necessity for further action by the
Commission. Second, we emphasize that this action is justified by the particular facts presented by this
case, including, in particular, that these small systems allegedly have little or no spare bandwidth
available to launch new networks, and that they account for only [REDACTED] of Comcast’s total
subscribers, thus ensuring that this limited stay does not deprive Tennis Channel of an effective remedy.

131 Order ¶ 92.
132 See United Gas Improvement Co. v. Callery Props., 382 U.S. 223, 229 (1965) (“[a]n agency, like a court can
undo what is wrongfully done by virtue of its order”); Panhandle Eastern Pipe Line Co. v. FERC, 95 F.3d 62, 72
(D.C. Cir. 1996) (noting that an agency “may exercise its remedial authority to relieve a party from the
‘predicament’ caused by that party’s reliance upon” an invalid order).
133 Pet. at 20. Comcast states that approximately [REDACTED] of its systems serving [REDACTED] subscribers,
or approximately [REDACTED] of Comcast’s total subscribers fall into this category.
134 Id.
135 Pet. at 20; see Declaration of Jennifer Gaiski, ¶¶ 5, 17 (Pet. Exh. C); Declaration of Jay Kreiling, ¶¶ 6, 21-22 (Pet.
Exh. D).
16


USCA Case #12-1337 Document #1389500 Filed: 08/16/2012 Page 42 of 46

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C.

Harm to Others and Public Interest Considerations Weigh Against A Stay.

45.
Finally, Comcast has failed to show that there would be no harm to others in granting a
stay or that the public interest favors a stay. Comcast asserts that Tennis Channel would not be harmed
by a stay because “a stay would merely maintain the status quo.”136 If maintaining the status quo were
justification for granting a stay request, every request would be granted because any grant of a stay
maintains the status quo. But it is well settled that a stay of an agency order pending judicial review is an
“extraordinary remedy.”137 The Commission determined, on a full record, that Comcast has violated
federal law and that Tennis Channel has been harmed by Comcast’s discrimination against it, and in favor
of program channels affiliated with Comcast, in program carriage.138 In his Initial Decision, the ALJ,
after a full evidentiary hearing, reached the same conclusion. Tennis Channel has been, and continues to
be, harmed by Comcast’s refusal to provide it with the broader carriage it provides Golf Channel and
Versus. Comcast’s assertion that Tennis Channel cannot claim that continuing the status quo “will cause
it cognizable injury” is without any basis.139
46.
Similarly, Comcast’s contention that the public interest favors a stay cannot withstand
analysis. Its claim that it is “always in the public interest to prevent violation of a party’s constitutional
rights,”140 is simply a reiteration of its claim that a stay should be granted because any injury to a party’s
First Amendment rights is irreparable. Both claims fail because implementation of the Order imposes no
injury to Comcast’s First Amendment rights, as discussed above.
47.
It further claims that the public “will be forced to bear unjustified burdens absent a stay”
reflected in “the increased costs if Comcast is required to pay increased aggregate fees to Tennis
Channel.”141 However, the only way the public would be “required” to pay increased fees would be if
Comcast chose to increase the fees it charges its subscribers. As discussed above, it is undetermined to
what extent Comcast will pay additional fees to Tennis Channel for broader carriage during the period of
judicial review. Moreover, Comcast does not even state that it would increase its subscriber fees in order
to recoup any additional fees it pays to Tennis Channel. Even assuming that Comcast might do so, such
speculation does not justify issuance of the extraordinary remedy of a stay.
48.
As Tennis Channel observes in its opposition, “Congress enacted Section 616 with the
express goal of promoting competition and diversity in programming by preventing MVPDs from
favoring their own networks over unaffiliated networks” and determined that “in light of the importance
of the public interest goals underlying Section 616, Section 616 complaints should be resolved promptly
through ‘expedited review.’”142 Particularly in light of the record developed in this proceeding, and the
conclusions of the ALJ and the Commission, we agree with Tennis Channel’s assertion that “[i]t would be
fundamentally at odds with these legislative and regulatory policy interests to allow further delay” by
granting Comcast’s stay petition.143

136 Pet. at 22.
137 See, e.g., Program Carriage Order, 26 FCC Rcd at 11549; In the Matter of Amendment of Parts 73 &
74 of the Commissions Rules to Establish Rules for Digital Low Power Television
, 26 FCC Rcd 11227,
11228 (2011).
138 See Order ¶¶ 83-87; Initial Decision ¶¶ 81-92.
139 Pet. at 22.
140 Id.
141 Id.
142 Tennis Channel Opp. at 21.
143 Id.
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49.
We reject Comcast’s reliance on the Commission’s earlier stay order in this proceeding
as a justification for granting its petition here.144 Grant of the earlier administrative stay was to permit the
Commission an “adequate opportunity to examine the record and the ALJ’s disposition of each issue
closely.”145 Different considerations are at issue now that the Commission has completed its review,
based on a full record. Moreover, Comcast’s current request for a stay is not advanced by the
Commission’s observation in its prior order concerning “potential disruption to consumers and any
affected third-party programmers.”146 Those concerns were primarily related to the ALJ’s channel
placement remedy and Comcast’s further claims of disruption from having to move or drop existing
channels to accommodate equal carriage for Tennis Channel. These concerns, however, are largely
alleviated by the Commission’s rejection of the ALJ’s channel placement remedy and our adoption here
of a limited stay with respect to the small number of systems that (according to Comcast) do not currently
carry Tennis Channel and have inadequate bandwidth to add another channel.

IV.

ORDERING CLAUSES

50.
Accordingly, IT IS ORDERED that, pursuant to the authority of Sections 1, 4(i) and 4(j)
of the Communications Act of 1934, as amended, Comcast’s Petition for Stay IS GRANTED in part and
DENIED in part as discussed above.
51.
In addition, Comcast IS DIRECTED to provide to the Commission’s General Counsel
and to Tennis Channel a list specifically identifying systems that are subject to the administrative stay
granted herein as described in Paragraph 44 above within five days of the date of release of this Order.
Failure to provide that information in a timely manner will result in automatic lifting of the administrative
stay granted herein without the necessity for further action by the Commission.

144 See Pet. at 23.
145 Stay Order, 27 FCC Rcd at 5616 ¶ 5.
146 Id.
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52.
This action is taken under delegated authority pursuant to Sections 0.41 and 0.251(c) of
the Commission’s Rules.
FEDERAL COMMUNICATIONS COMMISSION



Sean A. Lev
General Counsel


USCA Case #12-1337 Document #1389500 Filed: 08/16/2012 Page 45 of 46
August 9, 2012

STATEMENT OF COMMISSIONER AJIT PAI

ON GENERAL COUNSEL’S RULING ON COMCAST’S STAY REQUEST

Re:
Tennis Channel, Inc., v. Comcast Cable Communications, LLC, MB Docket No.
10-204, File No. CSR-8258-P, Order
Had Comcast’s petition been presented to the full Commission, I would have
voted to stay the Commission’s Order for the reasons Commissioner McDowell and I set
forth in our Joint Dissenting Statement.

USCA Case #12-1337 Document #1389500 Filed: 08/16/2012 Page 46 of 46
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, James M. Carr, hereby certify that on August 16, 2012, I electronically
filed the foregoing Opposition to Petitioner’s Emergency Motion for a Stay
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.


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

/s/ James M. Carr

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