Washington – As expected, Comcast Corp. took the Federal Communications Commission to court Wednesday over the agency’s decision to prevent any cable company from serving more than 30% of pay-TV subscribers nationally.
Comcast – the largest U.S. cable company with about 27% market share – filed an appeal in the U.S. Court of Appeals for the D.C. Circuit, asking that the 30% limit be set aside as “arbitrary, capricious, and an abuse of discretion …” The Philadelphia-based cable operator promised to wage a court battle in December when the cap was adopted.
Enforcement of the 30% cap would prevent Comcast from acquiring Time Warner Cable’s 13.3 million subscribers, to the extent Comcast wanted to bulk up geographically to better compete with AT&T and Verizon in voice, video and high-speed data markets
In 2001, a three-judge panel of the D.C. Circuit struck down an identical 30% cap, which is intended to prevent one cable company or a few of them from exercising make-or-break power over cable networks looking to maintain or initiate distribution.
In its court filing, Comcast said revival of the 30% cap violated the court's 2001 ruling and the First Amendment.
The FCC voted 3-2 in December to adopt the 30% cap at the urging of FCC chairman Kevin Martin, who needed the votes of the agency’s two Democrats to prevail.
Martin has barraged cable with regulation since taking office almost three years ago in response to cable’s refusal to accede to a Martin demand: the a la carte sale of cable channels.
During Martin’s tenure, the cable industry has now either initiated or joined eight cases now pending in a federal court of appeals. The ninth case -- to overturn the FCC’s ruling to slash cable leased access rates by 75% -- is expected to be filed soon.
The litigation pile could grow higher as Martin has several more regulations aimed at cable, including: the forced carriage of more than 500 Class A TV stations; the unbundling of cable programming at the wholesale level; forced arbitration of program carriage disputes before a finding of MSO discrimination; and the forced carriage of multiple digital programming streams offered by some local TV stations.
