Today the United States Court of Appeals- D.C. Circuit served an ace down the alley, holding that the Federal Communications Commission failed to show that Comcast’s decision not to put the Tennis channel on a more broadly available tier resulted in favoritism for a couple of the cable company’s sports programming affiliates.
The FCC failed to identify adequate evidence that there was unlawful discrimination resulting from Comcast’s decision not to grant Tennis’ request to be moved to another tier. Neither the FCC nor tennis made a quantitative showing as to whether any benefit flowed to Comcast. The court also held that discrimination against a programmer should be set on a reasonable business purpose, and Comcast’s straight up financial cost/benefit analysis fit the bill.
The irony here is that while the courts accepted Comcast’s business judgment for moving channels around on cable tiers, the jury is still out (I would say excuse the pun but appellate courts don’t have juries) on the net neutrality issue being addressed in the same court. The court could readily reach a holding for Verizon without even addressing the First Amendment issue by declaring that the FCC has again failed to show the probability of competitive or economic harm it has been ranting about since approving these rules in December 2010.
While the FCC gets some deference as the expert agency on telecommunications matters, that shouldn’t mean that it gets a free pass to draw any conclusions it wants without going through a rigorous quantitative analysis itself.
Comcast v. FCC served up the importance of rigorous analysis and the FCC’s net neutrality position should be subjected to the same treatment, unless the FCC wants the market to look at these rules and utter the infamous John McEnroe line, “You cannot be serious.”