FCC Record, Volume 27, No. 11, Pages 8850 to 9847, July 30 - August 17, 2012 Page: 9,285
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incentive to shield their affiliated programming vendors from competition with unaffiliated programming
vendors for viewers, advertisers, and programming rights, the program carriage rules promote
competition in the video programming market by promoting fair treatment of unaffiliated programming
vendors.'97 The Commission also observed in that order that "the number of cable-affiliated networks
recently increased significantly after the merger of Comcast and NBC Universal, thereby highlighting the
continued need for an effective program carriage complaint regime."9
34. There is no merit to Comcast's contention that the carriage remedy is content-based
because the Commission considered whether Tennis Channel is "similarly situated" with Comcast's
affiliates, Golf Channel and Versus. As the Commission explained, the "'principal inquiry in determining
content neutrality ... is whether the government has adopted a regulation of speech because of
[agreement or] disagreement with the message it conveys.'"" That was not the case here, the
Commission explained, where the agency had "considered the content of the three networks solely for
purposes of conducting a comparative analysis to determine whether Comcast discriminated 'on the basis
of affiliation or nonaffiliation' by affording preferential treatment to affiliated networks that are similarly
situated to Tennis Channel."'" The Commission emphasized that the "particular content of the
programming at issue was irrelevant; the same comparative analysis would apply regardless of the
specific type of programming involved."'0' Comcast's claims that the Commission's comparative analysis
of these three channels constituted content-based regulation are mistaken. Nothing in the Commission's
"approach, or the statutory provision and Commission rule that undergirded it, favors or disfavors any
particular speech 'because of [agreement or] disagreement with the message it conveys.""102
35. Moreover, as Tennis Channel points out in its opposition, "the 'similarly situated'
requirement actually protects Comcast by heightening the complainant's burden for establishing
discrimination."',03 Indeed, in this proceeding Comcast introduced expert testimony "to argue that Tennis
Channel, Golf Channel, and Versus are not similar in content terms. Now that Comcast has failed on this
point ... Comcast cannot complain that the Commission's consideration of its own expert's testimony
violates the First Amendment."'14
(...continued from previous page)
arguments, concluding that cable operators continue to exercise control in certain geographic areas. See
Cablevision, 649 F.3d at 712. In its 2011 Order, the Commission also rejected reliance on Comcast Corp. v. FCC,
579 F.3d I (D.C. Cir. 2009), finding that the court's language in that case regarding the extent of cable operators'
market control involved a different rule, and the rationale was inapplicable to the program carriage area. Program
Carriage Order 1 33; see Pet. n.54, citing Comcast Corp. v. FCC.
97 Order 99.
98 Program Carriage Order 1 33, citing Comcast Corp., Gen. Elec. Co. and NBC Universal, Inc., 26 FCC Rcd 4238,
4238, 1 and 4284-85, l 16 (2011).
" Order 100, quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994) ("Turner 1") (quoting Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989)).
'" Id.
10t Id
1o2 Order 100, quoting Turner 1, 512 U.S. at 642 (quoting Ward, 491 U.S. at 791). See also Ward, 491 U.S. at 791
("The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the
content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not
others.")
103 Tennis Channel Opp. at 11.
04 Id"9285
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/m1/452/: accessed April 25, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.