Tatel Tale: Judge Dominates Grilling In Cablevision's Program-Access Challenge

Cablevision made its case against the Federal Communications Commission's closing of the terrestrial exemption at federal court, but if the judge doing almost all the talking was any indication, it could be tough sledding.

Judge David Tatel's primary line of inquiry was why the FCC wasn't simply using its discretion as an expert agency to apply Congress'interest in preserving competition in view of changing technology -- a number of regional sports networks are delivered terrestrially, which the FCC considers the kind of must-have programming Congress intended satellite operators to have noncisriminatory access to. Judge Tatel also took aim at Cablevision's argument that the FCC was foreclosed from regulating terrestrial programming. He posed the hypothetical of lawyers for a satellite distributed network, before the FCC closed the exemption, writing a memo advising their client to switch to terrestrial and thus evade the access rules. Wouldn't the FCC be able to prevent that, he asked. Brands suggested it might, but that those were different circumstances and under the current set of facts, the FCC would be foreclosed. Judge Tatel asked whether a cable operator could be forced by the statute to unbundle phone and Internet service because that hindered satellite competitors. Pash said potentially, but the FCC had not weighed in on that. Judge Tatel conceded the point, but asked for advice on how the court could write an opinion that supported the FCC but did not open the door to that unbundling argument. Pash said he couldn't help, but Judge Tatel seemed provide his own answer, saying that Congress obviously did not mean to prohibit all competitive conduct, so that would be a governor on the FCC's actions even under their reading of the statue.