FCC Record, Volume 27, No. 11, Pages 8850 to 9847, July 30 - August 17, 2012 Page: 9,282
x, 8850-9847 p. ; 28 cm.View a full description of this book.
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judicial deference.68 In the specific context of FCC orders involving program carriage complaints, one
court has recently held that "[r]eview under this standard is highly deferential, with a presumption in
favor of finding the agency action valid."9 Beyond that, most of Comcast's argument is really an attempt
to have a court reweigh the evidence presented to the Commission.70 Review of those kinds of
determinations is subject to the "arbitrary and capricious" and "substantial evidence" standards of the
Administrative Procedure Act.7 Such review is "narrow,""72 and the determination of whether the
agency's decision is supported by substantial evidence requires "more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."73 Especially in
light of these deferential standards of review, Comcast's argument that the Order violated Section 616
fails to demonstrate that it is likely to prevail on review.
27. For example, Comcast claims that Congress intended in enacting Section 616 to
"narrow[] the application of antitrust principles by the Commission in the video-programming market"
and grant the Commission only limited authority "to remedy particularly severe forms of competitive
harm.""74 The Commission fully considered and properly rejected this argument in the Order as
inconsistent with both the text and legislative history of the provision: "Section 616 would serve no
function if it existed simply as a redundant analogue to antitrust law. Nothing in the text of Section 616
indicates an intent to mimic existing antitrust law or the 'essential facilities' doctrine. The legislative
history, moreover, expressly repudiates such a design.""75
28. Comcast further contends that there was not substantial evidence to support the
Commission's findings.76 That position does not hold up when viewed against the extensive record cited
in both the Order and the Initial Decision. For example, the Commission found Tennis Channel is
similarly situated with Comcast's affiliated channels, pointing out that they target the same viewers,
compete for the same advertisers, and have almost identical ratings.77 The Commission found that every
sports network in which Comcast has an ownership interest is carried on a tier that is more broadly
distributed than the tier on which Tennis Channel is carried, and "[e]very single nationally distributed
network carried exclusively on the Sports Tier [including Tennis Channel] is unaffiliated with
Comcast."7' The record included testimony from Comcast's former Chief Operating Officer that
Comcast's affiliated networks are "treated like siblings as opposed to like strangers," and that affiliates
"get a different level of scrutiny" than unaffiliated networks.79 On the basis of this record evidence, the
Commission found that Comcast had treated Tennis Channel differently from Golf Channel and Versus
68 See, e.g., Kay v. FCC, 393 F.3d 1339, 1343 (D.C. Cir. 2005) ('"we accord a substantial measure of deference to the
Commission's interpretation" of telecommunications statutes).
69 TCR Sports Broad. Holding, L.L.P. v. FCC, 679 F.3d 269, 274 (4th Cir. 2012).
70 See, e.g., Pet. at 8-12.
71 5 U.S.C. 702.
7 In re Core Communications, Inc., 455 F.3d 267, 277 (D.C. Cir. 2006).
73 Environmental Def. Fund v. EPA, 598 F.2d 62, 82 (D.C. Cir. 1978)(internal quotes omitted).
74 Pet. at 9-10.
75 Order 41.
76 Pet. at 10-12.
" Order ff 52-55; see also Initial Decision 25-26, 37, 41, 43, 45-48.
7 Order 47; see also Initial Decision f 57.
79 Order 46; see also Initial Decision 55.9282
Federal Communications Commission
DA 12-1311
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United States. Federal Communications Commission. FCC Record, Volume 27, No. 11, Pages 8850 to 9847, July 30 - August 17, 2012, book, August 2012; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc133015/m1/449/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.