In a December blog post titled "Tennis Channel Ruling: No Mere Foot Fault," FSF President Randolph May described the Tennis Channel's Section 616 "program carriage" complaint. An administrative law judge (ALJ) ruled it was unfair discrimination when Comcast said no to the Tennis Channel's request – made during an existing contract term – to be included in the same programming tier as the Comcast-affiliated Golf Channel and Versus (now NBC Sports Network). The ALJ ordered Comcast to carry the Tennis Channel on terms similar to the Golf Channel and Versus.
The ALJ's Tennis Channel ruling raises serious First Amendment problems. It has now been appealed to the full FCC for review. Hopefully, the Commissioners will take First Amendment principles seriously and reverse the ALJ's ruling.
Section 616 prevents multichannel video programming distributors (MVPDs) from preferring affiliated video programming over non-affiliated programming if it "unreasonably restrain[s] the ability of an unaffiliated video programming vendor to compete fairly." Whatever the FCC's obligations under Section 616, its actions must still be consistent with the First Amendment. This includes the Constitution's general prohibition of government censorship of speech based on content.
Content-based restrictions are presumptively unconstitutional and the government bears the burden of justifying them. The government is also generally prohibited from telling people what they must say. And it is well established that MVPDs are entitled to First Amendment protections like any other association or individual.
The ALJ's Tennis Channel ruling is especially problematic because it is unmistakably content-based. The ALJ analyzed and compared the respective programming of the Tennis Channel with the Golf Channel and Versus. This included the extent of overlap between the respective channels in terms of programming genres, target audiences, advertisers, and ratings. Deeming the Tennis Channel "similarly situated" to Versus and the Golf Channel, the ALJ concluded unfair discrimination against Tennis Channel resulted from certain business and editorial decisions made by Comcast, such as channel and tier placement. Comcast's Washington D.C. system, for instance, carries Versus on channel 7 and the Golf Channel on channel 11, but places the Tennis Channel on 735. And Comcast places Versus and the Golf Channel on its Expanded Basic or Digital Starter tiers while placing the Tennis Channel on its less popular Sports Tier.
As a remedy, the ALJ's ruling "requires Comcast to carry Tennis Channel at the same level of distribution that it carries the Golf Channel and Versus. Comcast Cable otherwise has full discretion in determining the level it chooses to carry the three channels." It also requires Comcast "to provide Tennis Channel with equitable treatment (vis-à-vis the Golf Channel and Versus) as to Channel placement."
In so doing, the ALJ's ruling gives very short shrift to First Amendment's protections for a speaker's editorial judgments. Newspapers, for instance, are protected from government intrusion on their editorial judgments about the numbers of pages for each issue, what sections they will include, what articles they will run, and what ads they will print. The U.S. Supreme Court's ruling in Miami Herald Publishing Company v. Tornillo (1974) recognized the protected status of such editorial judgments. It struck down a statute requiring newspapers to give equal space to political candidates to reply to published criticisms.
Here the ALJ tried to brush aside concerns about rights of editorial discretion. The ALJ asserted Comcast could still choose not to carry any of those three channels – but if it did choose to carry either of its affiliated channels then it would have to carry the Tennis Channel on similar terms. However, this attempted work-around won't work at all if First Amendment requirements are taken seriously.
The Supreme Court's political campaign speech rulings in Davis v. FEC (2008) and Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (2010) held that First Amendment limits are not avoided just because government gives speakers the ability to avoid speech restrictions and penalties by abandoning or altering the content of their speech.
The conditional nature of the ALJ order's remedy also undermines any claim that restrictions on Comcast's editorial discretion are justified by its promotion of diversity and competition in the video programming market. How could the ALJ's order be said to promote programming diversity if Comcast drops the Tennis Channel along with its affiliated channels?
Lastly, it's worth considering that the entire program carriage regulatory framework stands on shaky ground. 1990s analog-era cable regulations were upheld from First Amendment challenge on the basis of a perceived local cable "bottleneck." But as I explained in my blog post "Video Competition Should Lead FCC to End Old Regulation," the days when cable providers enjoyed a 90% market share are long gone.
Cable's market share has fallen to about 60% of video subscribers. Two nationwide direct broadcast satellite (DBS) providers serve over 30 million. Telco entrants serve approximately 6.5 million. Meanwhile, online video delivery from websites or video gaming console apps via broadband offers explosive platforms for video programming. Availability of unaffiliated video programming to consumers has also grown. And the number of vertically integrated video programming has declined from more than 50% of all cable programming in prior years to less than 20% today. These rapid, disruptive changes in the video market belie bottleneck rationales for reducing free speech protections for MVPDs.
The Constitution sets the basic framework and limits on the implementation of the Communications Act. For the FCC, this means that First Amendment protections must be its first-order concern in reviewing Section 616 program carriage complaints like the Tennis Channel's. If the Commissioners take free speech protections seriously, they should reverse the ALJ's ruling.
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