Cablevision System Corp. v. Federal Communications Commission, et al., No. 10-1062 (D.C. Cir. 2011)
Annotate this CaseThis action arose under section 628 of the Communications Act, 47 U.S.C. 151, where the Federal Communications Commission ("FCC") issued an order adopting rules to close the so-called terrestrial loophole. Petitioners contended that the FCC lacked statutory authority to regulate the withholding of terrestrial programing. The court held that given section 628's broad language and purpose, the court saw nothing in the statute that unambiguously precluded the FCC from extending its program access rules to terrestrially delivered programming. Nor could the court see any merit in petitioners' contention that the FCC's rules violated the First Amendment or in their various Administrative Procedure Act, 5 U.S.C. 500 et seq., challenges, with one exception. The court held however, that the FCC did act arbitrarily and capriciously by deciding to treat certain conduct involving terrestrial programing withholding as categorically "unfair" for purposes of section 628. Accordingly, the court vacated only that portion of the FCC's order and remanded for further proceedings.
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