On July 25, 2012, Free State Foundation President Randolph May issued the following statement concerning the FCC's ruling that Comcast discriminated against the Tennis Channel with respect to its channel placement on Comcast's cable systems:
"The FCC's action finding that Comcast discriminated against the Tennis Channel is just one more example of the agency's failure to conform to rule of law norms as it continues to engage in regulatory overreach. In this case, the FCC finds 'discrimination' even though Comcast carried the Tennis Channel when many other multiple channel programing distributors chose not to carry the channel at all. And Comcast distributed the Tennis Channel consistent with the way most other major MVPDs distributed it when they did choose to carry it.
The FCC's decision uses the cover of the malleable 'discrimination' standard to reach an arbitrary decision that, in its unpredictability, appears capricious. And, it does this in the context of a competitive video marketplace in which such micro-management of an MVPDs' programming decisions cannot be justified consistent with the First Amendment's protection of the free speech rights of the MVPD. By acting arbitrarily and capriciously in applying the 'discrimination' standard and by violating the First Amendment, the agency's regulatory double fault is no laughing matter. Rather, it is another example of the FCC's flouting rule of law norms in its decision-making."