Congress Should Respect Free Speech and Markets for Video Content

On September 2, House Resolution 1329 was introduced, which declares its purpose in "[r]ecognizing the need for greater access to rural and agricultural media programming." One can see the benefit to viewers of being informed about agricultural weather, agribusiness, commodity markets, and Western sports like rodeos. At the same time, it's important that government respects the First Amendment free speech rights of video programming distributors to select content and determine where or how it is presented to their subscribers. A resolution is perhaps a fitting way to commend Western living, but Congress should steer clear of mandating or appearing to direct the programming content choices of video service distributors.  

House Resolution 1329 salutes farmers, ranchers, agricultural productivity that supplies the American people with food, and the importance of agricultural investment to our nation's future. It also calls attention to the potential for rural and agricultural video programing to inform Americans about those issues, including residents in big cities and suburbs. In these the matters the resolution's outlook is worthy of respect.

The House resolution – in agreement with identically-worded Senate Resolution 712, introduced back on July 14 of this year – also decries media consolidation's harmful impact on access to such programming. But that point deserves significant qualification. American consumers have access to more video programming choices and distribution outlets than they did thirty years ago. In the early 1990s, nearly all Americans had only one choice for subscription-based multi-programming video distributor (MVPD) services, a local analog cable provider. Yet in 2022, Americans are served by a local cable provider with expanded programming tier offerings and by two nationwide direct broadcast satellite (DBS) providers. Many Americans also have access to competing former telco MVPD services. Additionally, online digital streaming services are available nationwide, with online video distributor (OVD) subscriptions now outnumbering MVPD subscriptions. And broadcast TV programming, which is now offered via multi-streaming channels and with HD quality, overwhelmingly constitutes a widely available non-subscription viewing option. 

The House resolution recognizes the emergence of competing OVDs. It states that "multichannel video programming distributors and providers of digital and streaming media should make delivery of rural agricultural programming, including agricultural news and western lifestyle content, a priority." Although the sentiment behind the resolution may be commendable, it ought to be remembered that video networks are private property. Any government intervention in the marketplace favoring the carriage or specific placement of one particular channel or program on a cable or other video network risks improperly overriding the editorial rights of cable providers or other video distribution network owners. 

Cable and other video providers' editorial decisions about whether to carry content and how to present it are constitutionally protected free speech. In Turner Broadcasting System, Inc. v. FCC (1994), for instance, the Supreme Court held that cable video programming distributors engage in and transmit speech and therefore receive First Amendment protections. Moreover, in a concurring opinion in the D.C. Circuit's 2013 Comcast v. FCC decision, then-Judge Brett Kavanaugh wrote that "[j]ust as a newspaper exercises editorial discretion over which articles to run, a video programming distributor exercises editorial discretion over which video programming networks to carry and at what level of carriage." 

Moreover, if Congress or the FCC were to adopt a regulation favoring a specific type of video content for carriage on MVPD networks then the regulation would not be content neutral. Any government mandate for prioritizing carriage or ensuring cable basic tier placement for rural and agricultural content – or any other specific type of content – would by definition be content-based and therefore subject to strict scrutiny. It's highly unlikely that a court would find that a program carriage or placement mandate favoring specific video content furthers a compelling government interest and is the least restrictive means to further that interest. 

Video policy ought to be guided by the principle of limited government. That principle should caution us against the risk of public officials unduly influencing the programming content choices of private video networks. Another concern is that government could end up preferring highly objectionable content. Rural and agricultural programming may be all-American and family friendly, but there are myriad programming choices that are neither.

As both chambers of Congress consider resolutions that recognize the value of rural and agricultural video programming, its Members should steer clear of allowing such recognition to turn into any form of requirement for private sector video providers. 

FCC Proposal Would Reform Legacy Video Rules for Programming Disputes

At its November 18 public meeting, the FCC will be voting on a proposed rulemaking that would make needed updates and fixes to its legacy rules for video services. The Commission's rulemaking deserves a "yes" vote. The federal regulatory framework for multichannel video programming distributor (MVPD) services has long been outdated. Until Congress updates the law, the Commission should do all it can to remove old unnecessary rules and streamline its procedures to reduce regulatory burdens. The Commission's proposed rulemaking regarding program carriage and other legacy video provisions furthers this important end.  

If adopted, the Commission's rulemaking would, among other things, clarify circumstances that trigger the start of the 1-year the statute of limitations for filing complaints with the Commission in disputes involving program carriage, program access, and good-faith retransmission consent. Also, ALJ decisions regarding such disputes would not take effect until 50 days after their release. And they would be automatically stayed upon the filing of appeals with the Commission, with an informal 180-day shot clock for the Commission to circulate a decision reviewing ALJ decisions in those matters.

For all the advances in video distribution technology and emergence of new video services, much of the MVPD market is still subject to regulatory restrictions that originated in the early 1990s, if not before. While replacement of the old framework awaits, the proposed rulemaking for program carriage and other disputes, part of its Media Modernization Initiative, is a worthwhile reform measure and it ought to be adopted. And the Commission's rulemaking ought to serve as another reminder that legacy regulation of MVPD services makes no sense in the era of Netflix, Hulu, and Disney+ and many other new video programing alternatives. 

Don't Force-Fit Outdated Cable Regulations onto Internet Video Services

The FCC is proposing to bring Internet-based streaming video services within the scope of its legacy cable regulations, and reply comments have just been filed. Specifically, the FCC seeks to re-define the legal meaning of the term multi-channel video programming distributor" – MVPD – to include subscription-based online video distributors – OVDs. According to the FCC, its proposed changes would take stock of new video competition from online services, such as Netflix or Amazon Prime.

But the FCC's new-wine-in-old-wineskins approach to video regulation raises profound law and policy issues. The text of the Communications Act appears to foreclose the agency making such a change. Extending regulations based on early 1990s assumptions about cable monopolies to the dynamic Internet is also dubious. And such a redefinition of terms raises serious First Amendment questions.

If anything, the FCC's move should prompt Congress to act with greater urgency in bringing about the reforms that are truly needed. Today's dynamic market for video services calls for a new framework that reflects technologies and competition that didn't exist when the cable legacy regime was established. Congress should adopt a simplified market-based framework for video services. A streamlined approach to match today's video market should treat competition rather than regulation as the norm, seek to treat all video providers equally, and respect the First Amendment.

The FCC proposes to redefine the Communications Act's term for "multi-channel video programming distributor" – or MVPD – by including within its scope "services that make available for purchase, by subscribers or customers, multiple linear streams of video programming, regardless of the technology used to distribute the programming."

In particular, the FCC proposes extending to OVDs the ostensible benefits of program access regulations enjoyed by MVPDs. Program access regulations limit the ability of MVPDs to withhold satellite programming from competitors in the video distribution market. In effect, those regulations are intended to ensure that MVPDs that also own video programming make their programming available at wholesale for their rivals to sell at retail to subscribers. Program access regulations thereby impose restrictions on free market entrepreneurship and decisions about protected speech content. The FCC suggests that expanding such regulations will spur further video competition.

Back in 2010, the FCC's Media Bureau concluded that the agency lacked the statutory authority to redefine MVPD in the manner the agency now proposes. (It’s discussed briefly in my Perspectives from FSF Scholars essay "Keep Online Video Free from FCC Regulation.") The Media Bureau concluded the text of the Communications Act appeared to foreclose it from re-defining MVPD to include OVDs that do not offer their own physical transmission path directly to video consumers.

Related to the statutory problem with re-defining MVPD, as the FCC now has proposed, is the First Amendment problem. Cable operators and other MVPDs have free speech rights in the editorial choices of their video programming channel lineups and tier packages.

The U.S. Supreme Court has recognized that the constitutional permissibility for several cable-related regulations depends upon Congress's findings of so-called cable monopoly bottlenecks in the early 1990s. But there has been a dramatic technological transformation of the video market since then. The competitive landscape now includes two nationwide direct broadcast satellite services (DBS), former telephone company entrants in the MVPD market, as well as OVDs. Wireless delivery options also exist now. The prevalence of these innovative and competitive forces reinforces the First Amendment problem with expanding cable monopoly-era regulations, as the FCC proposes.

Under the canon of constitutional avoidance, a statute susceptible to more than one reasonable construction is interpreted to avoid raising constitutional problems. Should the FCC follow through with its proposed redefinition of MVPD, the constitutional avoidance canon could likely be invoked by a court of law to prohibit such a redefinition. In fact, this canon already has been invoked in the cable regulation context.

In Comcast v. FCC (2013), Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit issued a concurring opinion concluding that government interference with the editorial discretion of video programming distributors is only permissible where such distributors possess market power in the relevant market. Judge Kavanaugh's antitrust-based reading of Section 616 program carriage regulations was bolstered by the constitutional avoidance canon. First Amendment protections for editorial decisions related to video programming tipped the scales in favor of free speech absent market power. (Free State Foundation President Randolph J. May and I discuss Judge Kavanaugh's excellent judicial opinion in an essay we called "The Case for Program Carriage Reform.")

The larger point is that the technological and competitive disruption to the video market posed by online video services should lead Congress to do away with the legacy cable regulatory apparatus. The FCC's proposed jerry rigging of the old system to suit current market realities should add urgency to comprehensive legislative reform efforts. Congress should pursue a market-based framework that is more streamlined, reduces regulations, seeks to treat video providers similarly, and respects the First Amendment.

In January 2015, FSF President Randolph J. May, myself, and several members of FSF's distinguished Board of Academic Advisers submitted a written response to the House Energy and Commerce Committee's white paper questions about modernizing federal video policy. The FSF Board of Academic Adviser members were Professors Michelle Connolly, Richard A. Epstein, Gus Hurwitz, Daniel Lyons, Bruce M. Owen, Glen O. Robinson, James B. Speta, and Christopher C. Yoo. Our response proposed that "[a] new framework should be established that is applicable all video services in the digital marketplace, the organizing principle of which is a rebuttable presumption that runs in favor of marketplace freedom and against regulatory intervention in the video market." Such a framework would eliminate the existing silo regime that subjects different providers of similar services to different regulatory burdens. It would also limit the FCC's authority to adopt broad anticipatory ex ante rules by confining the agency's actions to an ex post process based on adjudication of individual complaints alleging specific abuses of market power and consumer harm.

The Next Generation Television Marketplace Act – legislation that has previously been introduced in Congress by Rep. Steve Scalise – also offers a promising approach to comprehensive reform for video services policy. The bill was designed to eliminate outdated legacy regulations in the video marketplace.

The FCC's MVPD redefinition proposal should prompt Congress to comprehensively reform the outdated federal video services regulatory policy. Congress should regard competition rather than regulation as the norm, seek to treat all video providers equally, and respect First Amendment free speech strictures.

First Principles: Restoring the First Amendment to Its Rightful Place

On December 27, the D.C. Circuit issued an important opinion involving Federal Communications Commission rules promulgated to implement the Cable Act of 1992. Court opinions may not have been on your holiday reading list – there is a reason my wife calls me a workaholic! – so you may have missed the opinion in Agape v. FCC.

Because the court's decision implicates first principles – in this case respecting the First Amendment's free speech guarantee – you should be aware of it.

In Agape, the D.C. Circuit rejected a challenge to the FCC's 2012 order allowing the FCC's "Viewability Rule" to expire. The Viewability Rule imposed certain "downconversion" requirements on cable operators in connection with "must carry" obligations created by the Cable Act of 1992. In the 1992 Act, Congress required cable television systems to dedicate some of their channels to local broadcast stations, creating "must carry" rights for broadcast stations that elect mandatory carriage.

For present purposes, it is enough to understand that the Commission allowed the Viewability Rule to sunset in light of the transition from analog to digital broadcasting and accompanying technological and marketplace changes. Or as Judge Edwards puts it near the beginning of his opinion: "Since 2007 [when the Viewability Rule was promulgated], the telecommunications market – including the technology in use by broadcasters, cable distributors, and customers – has changed dramatically."

Judge Edwards explains why each of the challengers' arguments regarding statutory authority, arbitrary reasoning, and APA notice-and-comment violations are to no avail, and I refer you to his decision on these points. But the principal reason I write now is to call your attention to Judge Kavanaugh's excellent – and important – concurring opinion.

While Judge Kavanaugh agrees in full with Judge Edwards' opinion, he would go further: "The dramatically changed marketplace that the Commission aptly recognized in this case undermines the constitutional foundation of the Viewability Rule and, indeed, of the broader must-carry regime as well."

Judge Kavanaugh asserts – just as he did in his concurring opinion in the Tennis Channel case in May 2013 – that the "must carry" and other program carriage requirements imposed on cable operators violate the First Amendment. He points out that, in sustaining these requirements in Turner Broadcasting System, Inc. v. FCC in 1994, the Supreme Court "rested its approval of the must-carry regime on the fact that cable operators in the early 1990s possessed 'bottleneck monopoly power.'" As Judge Kavanaugh explained:

"Things have changed. In the two decades since Congress enacted the Cable Act of 1992, the video programming marketplace has radically transformed. Cable operators today face intense competition from a burgeoning number of satellite, fiber optic, and Internet television providers – none of whom are saddled with the same program carriage and non-discrimination burdens that cable operators bear. As this Court has flatly stated, cable operators 'no longer have the bottleneck power over programming that concerned the Congress in 1992.'"

I am pleased that, in his opinion, Judge Kavanaugh cited my 2009 Charleston Law Review article, "Charting a New Constitutional Jurisprudence for the Digital Age," in support of that proposition. In my article, after reviewing the Supreme Court's jurisprudence, along with marketplace developments, I argued that legacy program content requirements, including those applying to cable operators, should no longer be considered constitutional. I concluded this way:

"Perhaps it was predictable, maybe even likely, that the First Amendment’s protections would be limited substantially during the twentieth century’s Analog Age that tended towards a monopolistic or oligopolistic communications marketplace. But now, in the face of proliferating competitive alternatives attributable to profound marketplace and technological changes, it ought to be considered predictable and yes, even likely, for the Court to establish a new First Amendment jurisprudence befitting the media abundance of the twenty-first century’s Digital Age."

In addition to relying on my law review article, Judge Kavanaugh cited Christopher Yoo's Vertical Integration and Media Regulation in the New Economy at 19 Yale. J. on Reg. 171. I am proud that Professor Yoo is a member of the Free State Foundation's Board of Academic Advisors.

This excerpt from Judge Kavanaugh's opinion captures the essence of the matter:

"Unsurprisingly, cable regulations adopted in the era of Cheers and The Cosby Show are ill-suited to a marketplace populated by Homeland and House of Cards. And the constitutional problems infecting the 1992 Cable Act’s various program carriage and non-discrimination requirements grow more significant every day, as new video programming distributors emerge and prosper. The upshot is that the cable 'bottleneck monopoly' on which Turner rested no longer exists – and, as a result, the Act’s infringements on cable operators’ editorial discretion no longer can withstand First Amendment scrutiny."

I like the reference to House of Cards in this sense – the whole edifice of legacy First Amendment jurisprudence regarding the electronic media was constructed primarily on notions of "scarcity" and "bottleneck monopoly power" that no longer exist in today's communications marketplace, if ever they did. This First Amendment jurisprudence is a "House of Cards" waiting to crumble. I am confident that, before too much longer, other jurists will join Judge Kavanaugh in recognizing that existing government controls and program carriage mandates impinging on the editorial discretion of cable operators and other electronic media are incompatible with the free speech rights guaranteed by the First Amendment.

The FCC itself has a duty to conform its actions to the dictates of the First Amendment, so the agency should not wait for the courts to order it to do so. But, in the meantime, I commend to you a close reading of Judge Kavanaugh's decision. It's about first principles – in this instance restoring the First Amendment to its rightful place.

The Court Should Call A Double Fault

On February 25, the D.C. Circuit Court of Appeals will hear oral argument in Comcast Cable Communications v. FCC. This is the case in which the FCC, with Commissioners Robert McDowell and Ajit Pai dissenting, held that Comcast unlawfully discriminated against the Tennis Channel by refusing to accede to the Tennis Channel's request  – right in the middle of a contract term – that it be moved to a program tier with broader distribution than the one on which it was carried. 

After all is said and done, the court should call the FCC for a clear double fault. First, based on the facts of the case, the FCC should not have found that Comcast committed a statutory violation. Second, if it reaches the constitutional claim, the court should find that the FCC's decision violates Comcast's First Amendment rights. 

The FCC's Tennis Channel ruling is a clear case of agency regulatory overreach. Hopefully, the D.C. Circuit court will vacate the agency's decision. This will not only right a wrong, but it will also send a message to the agency that such regulatory zealotry is out of bounds. 

The basic facts of the case are really not in dispute. In the middle of a negotiated contract term, the Tennis Channel requested that Comcast move it from its current program neighborhood to the more broadly distributed tier on which two Comcast-affiliated networks – the Golf Channel and Versus (now called the NBC Sports Network) – were located. When Comcast refused, the FCC determined Comcast violated Section 616 of the Communications Act and the agency's regulations issued thereunder. Section 616 and the agency's implementing rules prohibit multichannel video program distributors ("MVPDs") from acting to "unreasonably restrain" unaffiliated program vendors from "compet[ing] fairly by discriminating in video programming distribution" on the basis of affiliation. 

The FCC determined that Comcast "discriminated" against the Tennis Channel in violation of Section 616 and the Commission's regulations despite the fact that, at the time of the ruling, six of the 20 largest MVPDs did not carry the Tennis Channel at all. And despite the fact that at the time the complaint was filed, every major MVPD that did carry the channel distributed the Golf Channel and Versus more broadly than the Tennis Channel. And, significantly, despite the fact that the FCC's ruling required Comcast to carry the Tennis Channel on a tier that would distribute the channel more broadly than it is distributed by its two owners – satellite operators DISH and DIRECTV – who happen to be Comcast's vigorous competitors in the multichannel program distribution market. The Commission ordered Comcast to move the channel to a different program tier. 

I initially addressed the problematic nature of this case in a blog back in December 2011 when an agency Administrative Law Judge ruled in the Tennis Channel's favor, a ruling the Commission affirmed in July 2012, essentially adopting the ALJ's reasoning. 

Without repeating everything I said in that December 2011 piece, I just want to make these points in advance of the upcoming oral argument. Even granting that the "discrimination" standard, with its competing "fairly" and "unreasonably" restrain language, is inherently somewhat vague and malleable, under the facts of this case, the agency's finding of discrimination on the basis of affiliation is unsupportable. Comcast was carrying the Tennis Channel in accordance with an agreement negotiated by the parties, and no other major MVPD was distributing the Tennis Channel in a manner more broadly than Comcast. When the complaint was filed, many large MVPDs did not carry the Tennis Channel at all, and all the major MVPDs that did carry it were distributing Versus and the Golf Channel more broadly. 

The Commission erred in finding "discrimination" under Section 616 just because the Tennis Channel was not treated in exactly the same manner as Comcast's affiliated sports channels. The statute does not require "equal treatment." Rather, it prohibits discrimination that is proven to be based on affiliation, a showing that, under the circumstances, could not be made. 

In my view, the Commission's action in the Tennis Channel case likely is inconsistent with the First Amendment as well. If Comcast is required to move the Tennis Channel from its present location, as the Commission ordered, it almost certainly will be required, due to channel capacity limitations, to displace another program channel that Comcast has determined either is more popular with its customers, or one that deserves an opportunity to try to build audience support. The decision to carry a channel, and where to place the channel, involves editorial discretion on the part of the cable operator that implicates free speech interests.

Moreover, in rendering its "discrimination" decision, the Commission was required to make determinations concerning the similarity of the programming among program channels. It may be true that tennis and golf are both "sports." But to make the type of determination rendered in this instance, the FCC necessarily examined the nuances of program genres, program ratings, target audiences, and the like. This type of detailed examination into programming decisions raises obvious free speech concerns regarding the violation of Comcast's First Amendment rights.

Indeed, while the Commission's Tennis Channel order in any event should be vacated, in light of today's competitive video marketplace environment, it is time for Congress to consider jettisoning the entire program carriage regime, especially as implemented by an overreaching agency. When Congress adopted Section 616 as part of the Cable Act of 1992, cable operators arguably possessed dominant market power in the multichannel video distribution marketplace. Now, more than two decades later, the marketplace environment is vastly different. With two satellite television operators competing, along with the "telephone" companies, cable's share of the MVPD market has dropped from 98% in 1992 to less than 60% today.

As the D.C. Circuit stated in 2009 in vacating in the FCC's rule limiting the number of subscribers a single cable operator could serve:

"First, the record is replete with evidence of ever increasing competition among video providers: Satellite and fiber optic video providers have entered the market and grown in market share since the Congress passed the 1992 Act, and particularly in recent years. Cable operators, therefore, no longer have the bottleneck power over programming that concerned the Congress in 1992. Second, over the same period there has been a dramatic increase both in the number of cable networks and in the programming available to subscribers." Comcast Corp. v. FCC [Lexis subscription required].
So, while the facts alone of the Tennis Channel case warrant reversal of the discrimination finding, if the court considers the First Amendment claim, it certainly should have in mind the present competitive multichannel video marketplace – which is more competitive now than in 2009.

And Congress should have the changed marketplace in mind as well when it revisits the current outdated provisions of the Communications Act.

Tennis Channel Carriage Ruling a False Start Under First Amendment

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.