## Facts

- The FCC administers program-access rules under § 628 of the Communications Act (47 U.S.C. § 548) to limit anticompetitive conduct by vertically integrated cable operators toward rival multichannel video programming distributors (MVPDs).
- After a rulemaking on the state of video competition, the FCC found that video competition had increased but that large cable operators still controlled substantial “must-have” programming.
- The FCC found the four largest cable operators controlled six of the top 20 national networks and nearly half of regional sports networks (RSNs).
- The FCC concluded incumbents had the incentive and ability to withhold or discriminatorily price affiliated programming—especially RSNs—to disadvantage new entrants such as telephone-company video providers.
- The FCC adopted an order extending and refining program-access obligations to prevent incumbents from denying access to their or their affiliates’ programming on a discriminatory basis.
- Cablevision, an incumbent operator with valuable affiliated programming, petitioned for review, arguing the order exceeded statutory authority and violated its First Amendment rights.

## Issues

1. Whether the FCC reasonably interpreted and applied § 628 to extend and refine program-access obligations for incumbent cable operators, consistent with Chevron and the APA’s arbitrary-and-capricious standard.
2. Whether the FCC’s non-discrimination requirements for affiliated programming violated Cablevision’s First Amendment rights.

## Decision

- The court denied the petition for review and upheld the FCC’s order.
- The court held the FCC’s interpretation of § 628 was reasonable and its order was not arbitrary or capricious.
- The court held the order did not violate the First Amendment because it was content-neutral and satisfied intermediate scrutiny as a structural competition measure.

## Legal Principles

- Under Chevron, a reviewing court defers to an agency’s reasonable interpretation of an ambiguous statute the agency administers.
- Under the APA, agency action is upheld if the agency examined the relevant data and reasonably explained the connection between the facts found and the choices made.
- Section 628 permits FCC rules targeting “unfair methods of competition” by vertically integrated cable operators that significantly hinder or prevent rival MVPDs from providing covered programming, including discriminatory pricing or refusals to deal.
- Program-access obligations directed at market structure and access to programming, rather than the message conveyed, are content-neutral and reviewed under intermediate scrutiny.
- Content-neutral cable regulations are constitutional if they further an important governmental interest unrelated to suppressing speech and burden no more speech than necessary to advance that interest.

## Conclusion

The D.C. Circuit upheld the FCC’s extension of program-access non-discrimination obligations to incumbent cable operators, finding the agency’s action within § 628 and adequately supported by the administrative record, and it rejected Cablevision’s First Amendment challenge because the rules were content-neutral competition regulation that satisfied intermediate scrutiny.


Cablevision Sys. Corp. v. FCC, 649 F.3d 695 (D.C. Cir. 2011)