Tennis Channel, Inc. v. Federal Communications Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 18, 2016 Decided July 5, 2016
No. 15-1067
THE TENNIS CHANNEL, INC.,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND UNITED
STATES OF AMERICA,
RESPONDENTS
COMCAST CABLE COMMUNICATIONS, LLC,
INTERVENOR
On Petition for Review of an Order of
the Federal Communications Commission
Stephen A. Weiswasser argued the cause for petitioner.
With him on the briefs was Daniel E. Matro.
Scott M. Noveck, Counsel, Federal Communications
Commission, argued the cause for respondents. With him on the
briefs were William J. Baer, Assistant Attorney General, U.S.
Department of Justice, Kristen C. Limarzi and Robert J.
Wiggers, Attorneys, Jonathan B. Sallet, General Counsel,
Federal Communications Commission, David M. Gossett,
Deputy General Counsel, and Jacob M. Lewis, Associate
General Counsel. Richard K. Welch, Deputy Associate General
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Counsel, Federal Communications Commission, and Maureen
K. Flood, Counsel, entered appearances.
Jonathan C. Bond argued the cause for intervenor Comcast
Cable Communications, LLC. With him on the brief were
Miguel A. Estrada and Lynn R. Charytan.
Before: ROGERS, BROWN and PILLARD, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, J., Circuit Judge: This petition for review stems
from a complaint filed by the Tennis Channel, Inc., alleging that
Comcast Cable Communications, LLC, violated Section 616 of
the Communications Act, 47 U.S.C. § 536, by giving
preferential treatment to its affiliated networks in programming
tier placement. Tennis Channel prevailed before the Federal
Communications Commission, but its fortunes faltered when the
court held that the Commission and Tennis Channel had failed
to identify substantial evidence of unlawful discrimination based
on affiliation. Comcast Cable Commc’ns v. FCC (“Tennis I”),
717 F.3d 982 (D.C. Cir. 2013). On remand, the Commission
resolved the entirety of Tennis Channel’s complaint in
Comcast’s favor and denied Tennis Channel’s petition for
further proceedings. For the following reasons, we deny the
petition for review of the order on remand.
I.
Section 616 of the Communications Act bars multichannel
video programming distributors (“MVPD”) like Comcast from
discriminating against unaffiliated programming networks like
Tennis Channel, a sports programming network, in making
decisions about content distribution. 47 U.S.C. § 536(a)(3).
Such discrimination is unlawful where the effect is to
3
“unreasonably restrain the ability of an unaffiliated video
programming vendor to compete fairly.” 47 C.F.R.
§ 76.1301(c).
The administrative law judge ruling on Tennis Channel’s
complaint found that Comcast had violated Section 616, and the
Commission affirmed. Tennis Channel, Inc. (“Initial Order”),
27 FCC Rcd. 8508, 8509 (2012). The court granted Comcast’s
petition for review, concluding that the record did not support
the finding that Comcast had violated Section 616. See Tennis I,
717 F.3d at 987. Assuming the correctness of the Commission’s
interpretation of Section 616, id. at 984–85, the court held there
was not substantial evidence to show that Comcast had not
based its tiering decision on business considerations, id. at
985–87.1 Tennis Channel petitioned for rehearing and rehearing
en banc, arguing that Tennis I represented a departure from anti-
discrimination precedent, Pet. for Reh’g 4–11, Tennis I, 717
F.3d 982 (2013) (No. 12-1337), and seeking an express remand
for further proceedings because Tennis I might be understood to
preclude further record review by the Commission, id. at 11–15.
The court denied the petition.
On remand before the Commission, Tennis Channel filed a
petition for further proceedings and reaffirmation of the Initial
Order. Specifically, Tennis Channel requested the Commission
reevaluate its complaint against Comcast in view of what it
1
In separate concurrences, Judge Kavanaugh opined that the
Commission’s interpretation of Section 616 violated the First
Amendment, because it did not require a showing of MVPD market
power, Tennis I, 717 F.3d at 994 (Kavanaugh, J., concurring), and
Judge Edwards opined that Tennis Channel’s complaint was untimely
under 47 C.F.R. § 76.1302(f) (2010), noting concerns about the lack
of fair notice under the Commission’s interpretation of when Section
616 complaints must be filed. Id. at 994–95 (Edwards, J., concurring).
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characterized as the “new” evidentiary test established in Tennis
I, Pet. 11–12, and argued there was sufficient evidence in the
administrative record for the Commission to find Comcast had
violated Section 616. Alternatively, Tennis Channel requested
that the record be reopened to allow Tennis Channel to submit
additional evidence if the Commission concluded the existing
record was lacking.
The Commission denied Tennis Channel’s petition. It
declined, in view of Tennis I, to search the record for evidence
that might sustain the discrimination complaint and denied
Tennis Channel’s complaint in its entirety. Tennis Channel, Inc.
(“Remand Order”), 30 FCC Rcd. 849, 851–52 ¶ 7 (2015). The
Commission concluded that the evidentiary test emphasized in
Tennis I was not novel, but could be viewed as “simply
provid[ing] examples of the types of evidence that might have
been adequate to prove that broader carriage would have yielded
net benefits to Comcast.” Id. at 852 ¶ 7. It further concluded
that in Tennis I the court had considered the evidence in the
administrative record and consequently there was no room left
for the Commission to reconsider the discrimination question as
the court had “neither invited nor directed the Commission to
address on remand the evidentiary shortcomings identified in its
decision.” Id. The Commission also denied Tennis Channel’s
requests for further proceedings. Because Tennis I had already
analyzed the administrative record, additional briefing was
unnecessary, id., and because Tennis Channel had had a “full
and fair opportunity to litigate its complaint,” the benefit of
reopening the record was outweighed by “the interest in
bringing the proceeding to a close,” id. at 852 ¶ 8.
II.
Petitioning the court for review of the Remand Order,
Tennis Channel challenges both the Commission’s decision to
5
deny its complaint and the determination that no further
proceedings are warranted. First, Tennis Channel contends that
the Commission ignored its obligation to make findings
following remand and erred in determining that the
discrimination complaint was fully resolved by Tennis I’s
analysis of the record. Had the Commission reexamined the
record, Tennis Channel maintains that it would have found
evidence of discrimination sufficient to satisfy Tennis I’s “new”
evidentiary test and to reaffirm its conclusion in the Initial
Order that Comcast had unlawfully discriminated on the basis
of affiliation. In particular, it would have found evidence that
Comcast’s asserted business decision was a pretext for affiliate
discrimination and that Comcast would have received a net
benefit or at least incurred no greater incremental loss from
moving Tennis Channel to a more favorable tier. The
Commission’s decision to reverse the Initial Order and deny
Tennis Channel’s discrimination complaint was therefore, it
maintains, “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706; see also
Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Second,
Tennis Channel contends that this was a situation where the
Commission should have allowed further briefing and evidence
in view of Tennis I’s “new” evidentiary test for proving Section
616 discrimination.
A.
Although Tennis Channel’s petition for review might be
understood as focusing only on the denial on remand of its
requests for the Commission to reconsider the findings in the
Initial Order and make additional factual findings, it is clear that
Tennis Channel also objects to the Commission’s denial of its
complaint. Because that part of the Remand Order is a “new
and final order setting forth the rights and obligations of the
parties,” see ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270,
6
278 (1987), there is little question that the court has jurisdiction
to determine whether the Commission adequately supported its
decision to deny the complaint, see id.; see also Schoenbohm v.
FCC, 204 F.3d 243, 245–46 (D.C. Cir. 2000).
Tennis Channel’s contention that the Commission acted
arbitrarily and capriciously in denying its complaint is premised
on the view that the Commission misread Tennis I as having
determined that there was no evidence in the administrative
record that might have supported Tennis Channel’s
discrimination complaint against Comcast. The better reading
of Tennis I, it maintains, is that the court held only that the
findings made by the Commission in the Initial Order were
insufficient to sustain its discrimination claim. This reading
follows, it states, from the traditional administrative law
principle that judicial review is limited to analyzing whether the
findings and reasoning supplied by the agency adequately
support its decision, see, e.g., Sprint Nextel Corp. v. FCC, 508
F.3d 1129, 1132–33 (D.C. Cir. 2007), and Tennis I’s focus on
the deficiencies in the Commission’s presentation of the
evidence, not the record as a whole. Understanding Tennis I to
have gone further was all the more remarkable, Tennis Channel
suggests, in view of Tennis I’s “new” evidentiary test for
showing under Section 616 that an MVPD did not make its
decision based on a business justification. Had the Commission
understood Tennis I to have rejected only the approach in the
Initial Order, then the Commission could not have denied
Tennis Channel’s complaint without conducting additional fact-
finding on whether there was record evidence that Comcast had
not based its tiering decision on business considerations.
The Commission’s view that Tennis I had concluded that
the administrative record lacked substantial evidence on which
the Commission could find discrimination is consistent with
administrative law principles. As Tennis Channel seems to
7
recognize, see Pet’r’s Br. 30–31, the court did not decide factual
issues that the Commission never considered. See Sprint Nextel,
508 F.3d at 1132–33; SEC v. Chenery Corp., 318 U.S. 80, 88
(1943). Instead, the court explained that there was not
substantial evidence to support the Initial Order’s finding of
affiliate discrimination. See Tennis I, 717 F.3d at 984–87. Even
assuming that a court would usually review only the record
associated with the reasons given by the agency, and remand
upon finding those reasons unsupported by substantial evidence,
see Gonzales v. Thomas, 547 U.S. 183, 186 (2006); INS v.
Ventura, 537 U.S. 12, 16–17 (2002), there is nothing to prevent
a reviewing court from examining the entire record to determine
whether additional fact-finding would be necessary on remand.
As here, where there was a fully developed administrative
record devoid of evidence that might have supported the
Commission’s Section 616 determination, the court could
explain that no further analysis was required on remand. See,
e.g., George A. Hormel & Co. v. NLRB, 962 F.2d 1061, 1066
(D.C. Cir. 1992); Guardian Moving & Storage Co. v. ICC, 952
F.2d 1428, 1433–34 (D.C. Cir. 1992); Vance v. Heckler, 757
F.2d 1324, 1325 (D.C. Cir. 1985). Of course, no such express
determination can be found in Tennis I. Cf. George A. Hormel,
962 F.2d at 1066; Guardian Moving, 952 F.2d at 1433–34.
Nonetheless, Tennis Channel fails to show that the Commission
acted arbitrarily and capriciously when it interpreted Tennis I
consistently with that administrative law precedent.
For the Commission to have understood Tennis I as
requiring additional record analysis on remand, the Commission
would have had to ignore the court’s statements that it had
reviewed the administrative record and determined neither
Tennis Channel nor the Commission in its Initial Order had
pointed to substantial evidence to support finding Section 616
discrimination. See Tennis I, 717 F.3d at 984–87. Although
Tennis Channel suggests full review of the administrative record
8
would have been unlikely, because Tennis I adopted a “new”
evidentiary test for establishing discrimination such that it was
obvious a remand was required, the Commission rejected the
view that Tennis I had established a new test and explained why
it reached that conclusion. See Remand Order, 30 FCC Rcd. at
851–52 ¶¶ 7–8. Not only had the court assumed the correctness
of the Commission’s interpretation of Section 616, see id. at
851–52 ¶ 7 (citing Tennis I, 717 F.3d at 984), the court’s
analysis reflected Commission precedent that an MVPD’s
decision is not discriminatory if based on a legitimate and non-
discriminatory business purpose, see Tennis I, 717 F.3d at 985
(citing Mid-Atlantic Sports Network, 25 FCC Rcd. 18,099,
18,115 ¶ 22 (2010)); see also TCR Sports Broad. Holding LLP
v. FCC, 679 F.3d 269, 274–77 (4th Cir. 2012). As the
Commission explained, the court was “simply provid[ing]
examples of the types of evidence” that might have sufficed to
undermine the legitimacy of Comcast’s claimed business
justification. Remand Order, 30 FCC Rcd. at 852 ¶ 7.
At best, Tennis Channel has established that in Tennis I the
court had the option of remanding the case for further
Commission review of the record to determine if there was
sufficient evidence to support the conclusion in the Initial
Order. But the court did not exercise that option. Under the
circumstances, the Commission correctly concluded that Tennis
I left no room for it to find discrimination on the existing
administrative record.
Tennis Channel’s reliance on Section 402(h) is misplaced.
That section provides that “[i]n the event that the court shall
render a decision and enter an order reversing the order of the
Commission, it shall remand the case to the Commission to
carry out the judgment of the court and it shall be the duty of the
Commission . . . to forthwith give effect thereto.” 47 U.S.C.
§ 402(h). All this means is that even if section 402(h) applied,
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see E. Carolinas Broad. Co. v. FCC, 762 F.2d 95, 100 n.6 (D.C.
Cir. 1985), the Commission was required to carry out the
judgment of the court, whatever it may be. It does not suggest
that the court, upon finding an agency’s reasons deficient, must
always remand for further record review and factfinding. By
conducting proceedings consistent with the court’s grant of
Comcast’s petition for review and vacatur of the Initial Order,
the Commission satisfied the requirements of Section 402(h).
It is unnecessary for the court to address intervenor Comcast’s
suggestion that 28 U.S.C. § 2347, and not 47 U.S.C. § 402(h),
governs the scope of remand.
B.
When the Commission reopens a proceeding and issues a
new and final order, that decision is reviewable by the court.
See Bhd. of Locomotive Eng’rs, 482 U.S. at 278. But when the
Commission exercises its discretion to deny reopening, “a
petition seeking review of an agency’s decision not to reopen a
proceeding is not reviewable unless the petition is based upon
new evidence or changed circumstances.” Sw. Bell Tel. Co. v.
FCC, 180 F.3d 307, 311 (D.C. Cir. 1999), abrogated on other
grounds by Entravision Holdings, LLC v. FCC, 202 F.3d 311,
313 n.** (D.C. Cir. 2000); see also Bhd. of Locomotive Eng’rs,
482 U.S. at 278–79; Transp. Intelligence, Inc. v. FCC, 336 F.3d
1058, 1062 (D.C. Cir. 2003); Schoenbohm, 204 F.3d at 245,
250; Entravision, 202 F.3d at 313. The petitioner must have
presented such evidence or circumstances to the Commission.
AT&T Corp. v. FCC, 363 F.3d 504, 509 (D.C. Cir. 2004).
Tennis Channel does not maintain that it presented “new
evidence” to the Commission on remand, see id.; indeed, it did
not identify what new evidence it would have introduced had the
Commission reopened the record. Much less has Tennis Channel
shown that there are “facts which, through no fault of [its own],
the original proceeding did not contain.” Sw. Bell., 180 F.3d at
10
312 (quoting Bhd. of Locomotive Eng’rs, 482 U.S. at 279).
Instead, the court has jurisdiction because Tennis Channel based
its requests for further proceedings on “non-pretextual grounds”
of “changed circumstances.” Vill. of Barrington, Ill. v. Surface
Transp. Bd., 758 F.3d 326, 329 (D.C. Cir. 2014) (citation
omitted); Jost v. Surface Transp. Bd., 194 F.3d 79, 85 (D.C. Cir.
1999); Fritsch v. ICC, 59 F.3d 248, 252 (D.C. Cir. 1995). In
Tennis I, 717 F.3d at 985–87, the court focused on aspects of the
alleged discrimination not addressed in the Initial Order. Even
if these newly considered aspects did not amount to a “new”
evidentiary test, see supra Part II.A., the evidentiary focus of the
inquiry had shifted from whether the MVPD offered preferential
treatment to its affiliates with similar programming and costs to
whether petitioner had shown that the MVPD could have
recouped the costs of broadening coverage of the non-affiliate
such that failing to do so could not have been a legitimate
business decision. See Tennis I, 717 F.3d at 985–86.
Consequently, in petitioning the Commission for further
proceedings, Tennis Channel was not merely explaining material
errors of law or reasoning in the Initial Order or Tennis I, but
was also seeking to “bring new material to [the Commission’s]
attention.” See Jost, 194 F.3d at 85; Fritsch, 59 F.3d at 252; see
also Bhd. of Locomotive Eng’rs, 482 U.S. at 278–79. It sought
to do this by having the Commission reexamine the
administrative record in light of Tennis I or reopen the record to
allow Tennis Channel to submit evidence addressing the
evidentiary deficiencies identified in Tennis I. Neither ground
was mere pretext by Tennis Channel to snatch victory from the
jaws of defeat. See Jost, 194 F.3d at 84–85.
On the merits, review of the Commission’s denial of further
proceedings is highly deferential: to overturn such a decision
“requires ‘a showing of the clearest abuse of discretion.’” Bhd.
of Locomotive Eng’rs, 482 U.S. at 278 (citation omitted);
Schoenbohm, 204 F.3d at 250 n.4; Sw. Bell, 180 F.3d at 311; E.
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Carolinas Broad., 762 F.2d at 100–03. Tennis Channel fails to
show such abuse.
Regarding the request for further briefing, because the
Commission correctly determined that Tennis I concluded the
administrative record contained insufficient evidence to support
a finding of Section 616 discrimination by Comcast, see supra
Part II.A, the Commission’s rejection of Tennis Channel’s
request for further briefing was hardly a clear abuse of
discretion. The Commission already had the opportunity to
review the record evidence that Tennis Channel claimed in its
petition for further proceedings was critical to showing affiliate
discrimination.
Regarding the request to reopen the record to allow
submission of additional evidence, although the Commission’s
explanation for denying Tennis Channel’s request was brief, it
was sufficient. Remand Order, 30 FCC Rcd. at 852 ¶ 8. The
Commission explained that it was exercising its discretion not to
reopen the record because “the interest in bringing the
proceeding to a close outweigh[ed] any interest in allowing
Tennis Channel a second opportunity to prosecute its program
carriage complaint.” Id. “Tennis Channel has had a full and fair
opportunity to litigate its complaint.” Id. On remand, Tennis
Channel did not identify the critical evidence it intended to
present if the Commission reopened the record. During the oral
argument before the court, counsel for Tennis Channel suggested
the possibility of introducing expert testimony that carrying
Tennis Channel more broadly had the potential of increasing
Comcast’s advertising revenues and was supported by audience
interest in the channel. See Oral Arg. Tr. 9–10. Putting aside
that Tennis Channel had neither identified nor presented that
evidence in support of its reopening request, the failure to
develop evidence to rebut Comcast’s asserted business decision
appears to be a problem of its own making. Tennis Channel’s
12
incentive to develop rebuttal evidence preceded Tennis I. See
Tennis I, 717 F.3d at 985–86; Mid-Atlantic Sports Network, 25
FCC Rcd. at 18,115 ¶ 22. With the benefit of extensive
discovery and evidentiary hearings, Tennis Channel had the
opportunity to put such evidence in the record. Having chosen
how to litigate its complaint, Tennis Channel fails to show the
Commission clearly abused its discretion in declining to extend
the proceedings. See E. Carolinas, 762 F.2d at 103; cf. Nw. Ind.
Tel. Co. v. FCC, 872 F.2d 465, 471 (D.C. Cir. 1989);
Carter/Mondale Presidential Comm. v. FEC, 775 F.2d 1182,
1187 (D.C. Cir. 1985). Because the Commission rested its
decision not to reopen on its discretion, and not the possible
statutory bar to reopening the record under 47 U.S.C. § 402(h),
see Remand Order, 30 FCC Rcd. at 852 ¶ 8 n.30, the court has
no occasion to address whether the Commission could have
relied on Section 402(h)’s statutory bar, see E. Carolinas, 762
F.2d at 100–01.
Accordingly, the court denies the petition for review.