Time Warner Cable Inc. v. FCC

Time Warner petitioned for review of the FCC's 2011 order promulgated under section 616(a)(3) and (5) of the Communications Act of 1934 (Communications Act), as amended by the Cable Television Consumer Protection and Competition Act of 1992 (Cable Act), 47 U.S.C. 536(a)(3), (5). Section 616(a)(3) and (5) and that part of the 2011 Order establishing the standard for demonstrating a prima facie violation of these statutory provisions (the program carriage regime) were intended to curb anticompetitive behavior by limiting the circumstances under which a distributor of video programming could discriminate against unaffiliated networks that provided such programming. The court concluded that the program carriage regime did not violate the First Amendment where its case-specific standards for identifying affiliation-based discrimination served important government interests in promoting competition and diversity in an industry still posing serious competitive risks and were narrowly tailored not to burden substantially more speech than necessary to further those interests. The court concluded, however, that the 2011 Order was substantive and therefore subject to the notice-and-comment requirements of the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq. Because the FCC failed to comply with such requirements, the court granted the petition for review insofar as it raised an APA challenge. View "Time Warner Cable Inc. v. FCC" on Justia Law