The Court Should Call a Double Fault

[Commentary] On Feb. 25, the U.S. Court of Appeals for the D.C. Circuit will hear oral arguments in Comcast Cable Communications v. Federal Communications Commission.

This is the case in which the FCC, with commissioners Robert McDowell and Ajit Pai dissenting, held that Comcast unlawfully discriminated against the Tennis Channel by refusing to accede to Tennis’ request — right in the middle of a contract term — that it be moved to a program tier with broader distribution than the one on which it was carried. After all is said and done, the court should call the FCC for a clear double fault. First, based on the facts of the case, the FCC should not have found that Comcast committed a statutory violation. Even granting that the “discrimination” standard — with its competing “fairly” and “unreasonably” restraint language — is inherently somewhat vague and malleable, under the facts of this case the finding of discrimination on the basis of affiliation is unsupportable. Second, if the constitutional claim is argued, the court should find that the FCC’s decision violates Comcast’s First Amendment rights.