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Case number 15-1067, the Tennis Channel Inc.

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Petitioner versus Federal Communications Commission at L. Mr. Weiss Weisser for the petitioner, Mr. Novak for the respondent, and Mr. Bond for the intervener.

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Good morning.

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May it please the Court, Your Honor.

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Good morning.

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My name is Stephen Weiswasser.

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I'm counsel for the Tennis Channel in this case.

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I will reserve, if I can, three minutes for rebuttal from the 15 minutes of my allotted time.

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May it please the Court, this appeal is based upon one unavoidable proposition.

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that in this Court's prior decision in the Tennis Channel matter, it made a significant addition to the FCC's framework for deciding Section 616 cases.

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And Tennis Channel was necessarily and arbitrarily denied an opportunity to try to meet that test.

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Before that decision, a Section 616 complainant established that a vertically integrated MVPD had discriminated against it in the terms and degree of its carriage.

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because it was competitively similar to programming networks that the MVPD owned and was in fact seeking to protect.

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And the complainant would win unless there was clear evidence that showed that the discrimination took place for independent business reasons.

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In this case, using that framework,

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The FCC decided in favor of Tennis Channel and found that Comcast's real purpose in carrying Tennis Channel far more narrowly than Golf Channel and Versus was to insulate those affiliated networks from its competition.

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And that Comcast's claim of non-discriminatory reasons was not credible.

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This court vacated that decision because it found an additional test that the record must meet.

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In effect, the Comcast was so satisfied with the programming benefits it was receiving as a result of its limited carriage of tennis channel that it was willing to forego benefits that its distribution business, cable business, would necessarily and otherwise obtain from tennis channel's broader carriage.

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I don't think that's what our court would say and held.

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I don't think the prior panel of this court would so characterize its holding.

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Well, Your Honor, it's a necessary reading of what the court said was missing.

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Well, you said that the complainant originally charged that it was competitively similar

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And unless there's an independent business reason for the decision, I think our court said there was an independent business reason for the decision.

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I think what it said, Your Honor, it would be non-beneficial to Comcast.

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It would be non-beneficial to Comcast.

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except that.

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In this case, I think what the court might have said, and I think the court did say, was that Comcast benefited from the, let me start that point again, that the distribution business of Comcast

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Once Comcast alleged simply that there was an additional cost, that none of the parties, that FCC nor Tennis Shaddle, established whether there was or was not an independent benefit, additional benefit that would have been obtained

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forecast if it carried us more.

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It carried Tennis Channel more broadly.

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So that is the essence of the point, which is that we had failed somehow to meet the burden of establishing

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that there was an independent additional benefit that could have been obtained from carrying us more broadly.

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And it was that which we say was not part of the initial burden that we carried in this case or that the Commission thought was necessary.

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And it's why we didn't make that showing.

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That is to say that Comcast would have benefited from carrying us because we didn't anticipate that question was going to be in the case.

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We are not in a position, nor are we inclined to redo what our other panel has done, nor are we in a position to characterize the FCC's action differently from its own characterization.

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And both the prior panel and the Commission on Remand understood what the prior panel of our court

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did as not changing the law.

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We don't believe, of course, that we accept the court's decision.

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The court's in position of this test.

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It is, in fact, the law governing the case.

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We are only challenging not the court, but what the commission did when faced with what we think is a clear allegation, a clear demonstration that the test had been changed.

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I mean, the Commission attempted post hoc to rationalize that there had been no change, but if you read its opinion with care, there's no place where the Commission addresses this question of whether there was benefit to Comcast, and to the extent that it addressed the

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evidence that Comcast had presented to justify the business decision that it made, the Commission found that that evidence was simply not credible.

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And on that basis, we believe not that the court found that there was adequate business justification, it found that there was no evidence that there was inadequate business justification.

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Go back and argue that the record has the evidence of net benefit.

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And where is that in the existing record?

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What would you rely on to show that indeed Comcast cost benefit analysis was

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And then, in fact, it would have net benefit.

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Well, Comcast cost benefit analysis was itself inadequate because it never dealt with the potential benefits.

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But if I were going to, and indeed, we identified some of this for the commission in the petition.

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And the commission, of course, didn't address it, which is part of what we're competing.

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But my question is, what's the evidence in the record?

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Existing record.

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I'll give you two examples, Your Honor.

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In the record is a report of the FCC's chief economist.

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which is paralleled with the report prepared by our economist that demonstrated, among other things, that Comcast, when it was faced in particular markets,

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with particular competition from other distributors carried tennis channel more broadly than it did in markets where it perceived the competition to be normal or average.

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The inference to be drawn from that, Your Honor, is that Comcast saw that there are advantages to carrying Tennis Channel more broadly than it does in normal circumstances when faced with particular competition.

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In parallel to that, again, that information, that piece of evidence, which we think is at least suggestive of the proposition, was not mentioned by the court and it was not, in fact, in the commission's briefs

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or in the decision, but it's in the record.

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You said you had two.

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Okay.

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The second one is one that was in fact before the court, although it didn't mention it, and it was in the intentions that both parties made, and that is that as a general proposition,

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Comcast carried tennis gel at a lower level of penetration than other peer MVPDs not burdened by the desire to protect their own business, their own programming services than they did.

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So that in effect it was carrying it at a lower level.

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And you say that's evidence from which the Commission

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erred uh... was was arbitrary commissions and erring to find from those two pieces of evidence that there was a net benefit no we were suggesting what the commission ought to have done on the basis of those two pieces of evidence both of which established that there are objective reasons for uh... comcasts

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that Comcast would have benefited from broader carriage of tennis channel would have been to ask the parties to actually brief the question on the basis of the entire record and to consider the possibility of reopening the record for the limited purpose of evaluating additional evidence that might have been presented.

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And if you could, if the record were reopened and the FCC were to permit you to add evidence to it as you've requested, what evidence would you add?

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Well, Your Honor, what we probably would have done, I think we almost certainly would do, is to obtain some additional expert testimony with respect to the impact of broader carriage on Comcast's distribution business

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We would have brought in evidence of all kinds with respect to potential increased ad revenues.

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We would have brought in evidence with respect to potential audience interest in the content.

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In fact, I know what we would have done because in a companion case,

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which was, is still pending in the D.C.

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Circuit, excuse me, at the commission, which we, where we represent the independent program or game show network, but administrative law judge in that case, looking at exactly the same facts that the commission did when it decided that

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that the court had not changed anything.

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The administrative law judge looked at the same facts and said, I have to reopen the record here and provide the parties an opportunity to respond to and provide evidence with respect to the test, the new test that the court has established.

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on your comcast, in our prior decision.

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Pardon?

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In our prior decision.

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Yeah, in your prior decision.

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And what's the case that you're referring to there?

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Is that in your reading?

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It is Game Show Network, Your Honor, Game Show Network versus Cablevision.

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And that case is not a matter of record before you.

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It's not in this record.

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If you would like, we would be happy to supplement it by providing you citations to the place where the administrative law judge specifically noted that the Comcast decision in this court had changed the evidentiary nature of the positions the parties needed to take.

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So could I just ask, based on what you said this court had done in changing, when Comcast offered before the FCC the information that its decision not to distribute Tennis Channel more broadly was based on a simple business decision, that these additional fees it would have to pay didn't make it worthwhile.

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Why wouldn't that have been the occasion for you to have come back with this evidence that you're referring to now in your discussion with Judge Pillard?

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At that point, we responded with respect to what we thought was the reigning standard in the case, which was Comcast was making an enormous amount of money from the fact of discrimination because it was being shielded from competition in two of its most important own networks by keeping us weak and small.

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But you're assuming the conclusion by saying that the reason they were getting this money is shielding their vertically integrated sports networks from competition.

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But I think Judge Rogers' question is you have to come back and show, no actually, if you're treating us equally,

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you would benefit.

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Well, in fact, that's what we showed.

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On the one hand, what we showed was the reason why we were not being treated equally was because Comcast was profiting from not doing so.

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The thing that the court changed, the test that the court

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added, which we did not realize was part of our burden and which, I must say, judging from the Commission's brief decision and briefing before the Court before it decided it, that the Commission didn't understand was, we also had to prove that not only was the

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was the Comcast benefiting from keeping us small and weak.

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It was forgoing an opportunity to make additional revenue on the distribution side by doing that.

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Judge Rogers, it seems to me that stopping at the point of saying that relieving a party from being discriminated against would cost money and that that is a sufficient business justification not to do it would not, in most discrimination cases,

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really work, and it shouldn't work here either.

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Again, Comcast was benefiting enormously financially from the failure to comply with the statutory requirement that similarly situated networks needed to be treated similarly.

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So is it your position then that the distribution side of things was simply not a matter at issue before the Commission?

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It was not a matter of issue at that time in this way.

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We accept the fact that the DC Circuit and the first panel.

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No, I'm talking about before the panel's decision.

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That is correct.

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The cost, the impact on the distribution business itself was outside of what was necessary to prove in a case of discrimination under Section 16.

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And what's your strongest case?

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supporting that position?

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Well, I think we're the strongest case, at least we were.

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This was a case where the Commission wholeheartedly found discrimination, found benefit to Comcast, and never mentioned the distribution business.

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No, I understand you won, but was the Commission relying on a long line of precedent in interpreting Section 6?

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We were the first case where the commission had found that a program service had been discriminated against.

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It's one of the reasons why the case is so important.

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And candidly, it's one of the reasons why it is, we think, surprising that the commission, rather than taking the opportunity to buttress its decision in a fashion that could be done with not much difficulty, we thought, that it didn't take it.

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What about Comcast's argument that we have no jurisdiction to review the FCC's decision not to consider the record further and or reopen the record?

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Judge Ballard, we think that clearly this is not a case that falls within the category that the law you're describing is intended to apply.

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We are not looking around for a way to create an opportunity for a judicial review that we wouldn't otherwise get.

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There were changed circumstances in this case, which was that in the intervening decision of the D.C.

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Circuit that created a test that nobody had an opportunity.

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So you just pointed to two things.

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that you filed your request for further deliberation for the Commission on the record and or supplementation record or your time for appeal expired and then your separate one was changed circumstances.

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If you take away changed circumstances, is your position still that there's no jurisdictional bar?

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No changed circumstances.

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We do not believe there's a jurisdictional bar here.

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Even without changed circumstances?

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Yeah, even without changed circumstances.

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But we think that... What's your strongest basis for that?

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Well, in the law, we think that the term change circumstances so aptly applies here, Your Honor, that I can see that this is not a case that ought to be barred and is intended to be barred by the policy behind the law.

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If we accept what appears to be the view of the prior panel and of the commission that the circumstances did not change, this was the law all along, maybe the commission the first time around didn't recognize,

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all of the groups that had to jump through.

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If we accept that, and then I repose the question, what's your best authority for it nonetheless not being beyond our jurisdiction to consider the FCC's decision not to be open?

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Well, with respect, we find the notion of change circumstance here compelling with respect to the question of jurisdiction.

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Right, and you're bringing my hypothetical and or description of

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the situation.

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And would think that we are comfortable with relying on that change circumstance.

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If there's no change circumstance, Your Honor, that is to say, if we're wrong on the question of whether or not the court changed the test, and again, we do not object to that change.

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We are prepared to live with it and only ask that the Commission do so as well now.

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I think we have a bigger problem than just having the court's jurisdiction issue resolved.

[00:20:06] Speaker 04:
All right, let us hear from counsel for respondent.

[00:20:27] Speaker 03:
Good morning, Your Honors, and may it please the Court.

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If I may, I'd like to begin by explaining what we understand the Court to have held in the first Tennis Channel case, because I think the Court has surmised we don't agree with Tennis Channel's view that the Court somehow adopted new evidentiary tests to govern this or any other case.

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What about the notion that this is the first time the FCC has ruled in this area?

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I just want to be clear what your position is on that.

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So I don't think that's quite accurate on the premise.

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It's not the first time we've ruled in this area.

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We've had other program carriage disputes.

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I think the court can see we discussed the Masson case at length on both sides in the briefing here.

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So we previously set forth in rule makings as well as prior adjudications what the legal standard is and the framework we're using to adjudicate program carriage disputes.

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So if I go back and read your brief in the first appeal,

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I will see all of this set out.

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I think so, Your Honor.

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I think that I want to draw a distinction here between the overarching legal framework that governs these kinds of disputes and the separate question of whether the particular evidence here was sufficient to satisfy the burdens under that framework.

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Because I think the court

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agreed with us or at least accepted assume the correctness of our legal framework for adjudicating these disputes and simply disagreed on the sufficiency of the evidence here.

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So in fact I think if you take a look at the prior panel opinion, toward the start of the opinion one of the first things it does

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is to say that it is applying and assuming the correctness of our longstanding evidentiary framework for adjudicating program carriage complaints.

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So the first thing the court did was to adopt our evidentiary framework.

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And then the second thing the court did was to identify the particular defense that Comcast raised here.

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And that was its claim that it couldn't have been discriminating because the decision was simply a straightforward financial analysis.

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And then the third thing the court did, and I think this is important, was to offer a common sense explanation of what a party in Tennis Channel's position presumably should have done to rebut that particular defense, either by showing the financial calculus actually runs the other way or by showing that it couldn't have been the actual basis for Comcast's decision and instead was mere pretext.

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And then the fourth thing that the court did was to look at the record here and it found, quote, the record lacks affirmative evidence along these lines.

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So as we understand it, nothing the court's decision here prescribed any new or different legal tests to govern this dispute.

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We think the court simply found within our established legal framework that Tennis Channel had failed to make the required factual showing to rebut the particular defense that Comcast offered here.

[00:23:15] Speaker 06:
Yes, Mr. Novak, but fact and law really dovetail.

[00:23:19] Speaker 06:
I mean, in a sense, any time a court, an appellate court says, oh, this type of evidentiary showing doesn't suffice to show discrimination, there is, that's a new legal conclusion.

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on what the you know how many hoops you have to jump through and there's a lot of intuitive appeal to what the Commission did the first time around say they were benefiting a lot from these shielded their own proprietary networks being shielded and

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And we think that's why they, you know, every sports network that they own, they treated one way.

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And every sports network that they didn't own, they treated another way.

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And, you know, they were benefiting from that.

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So that's one test.

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And even though you're under the same umbrella, to say, no, no, you actually have to go further and show you're foregoing some opportunity that would come from the incremental better treatment of the competitors

[00:24:16] Speaker 06:
Maybe that is a different legal test.

[00:24:18] Speaker 03:
So I think there are two questions embedded there.

[00:24:23] Speaker 03:
So one issue here is that I think the way that the panel viewed this, and I don't think we're at liberty to question that, is that the evidence it was asking for was the natural consequence of the particular defense of Comcast at Crawford here.

[00:24:38] Speaker 03:
When Comcast said that the reason, our non-discriminatory reason, for not carrying Tennis Channel was a cost-benefit analysis, it naturally should have occurred to Tennis Channel and anyone else to present cost-benefit evidence.

[00:24:51] Speaker 03:
Now, there was a second.

[00:24:52] Speaker 04:
So could I just clarify?

[00:24:53] Speaker 04:
Because I see where this court said Tennis Channel offered no evidence that its rejected proposal would have afforded Comcast any benefit, any being italicized.

[00:25:08] Speaker 04:
Does that mean, in other words, that benefit on the distribution side was clearly a matter that was within the FCC's understanding of the meaning of 616 and therefore a matter that should have been

[00:25:23] Speaker 04:
factually addressed before the Commission?

[00:25:26] Speaker 03:
I think it is.

[00:25:27] Speaker 03:
I think if you take a look at the Masson case, what we said in Masson, that was a similar situation where in that case the distributor had said the reason we didn't carry this regional sports network was that we found there was insufficient demand for it here

[00:25:43] Speaker 03:
to justify the cost of carriage.

[00:25:46] Speaker 03:
And in that case, we looked at the facts and we found that they were correct on that basis.

[00:25:50] Speaker 03:
We agree with them.

[00:25:51] Speaker 03:
But I think it was evident to everyone that in order to rebut a defense of a... Excuse me.

[00:25:56] Speaker 04:
When you say we, who are you talking about?

[00:25:59] Speaker 04:
Comcast?

[00:26:00] Speaker 03:
The Commission.

[00:26:01] Speaker 04:
All right.

[00:26:02] Speaker 04:
So the Commission in Masson agreed with that argument.

[00:26:06] Speaker 03:
Yes.

[00:26:07] Speaker 04:
That you have to look at Comcast's entire business operation

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in order to determine whether or not there is any benefit?

[00:26:18] Speaker 03:
Well, I think that any part of the business would be relevant to the cost-benefit calculation.

[00:26:23] Speaker 04:
So my question is, if indeed there was this economic report in the record before the commission where that inference against you could be found, why

[00:26:41] Speaker 04:
It's a hard question to ask, but did this court simply decide sub solentio, or that that wouldn't have made any difference?

[00:26:50] Speaker 03:
I think so.

[00:26:51] Speaker 03:
I don't think it was sub solentio.

[00:26:53] Speaker 03:
So maybe if I can discuss where I think the court disagreed with us in the prior case.

[00:26:58] Speaker 03:
I think the court disagreed with us on two issues.

[00:27:00] Speaker 03:
And we're not here today to quibble with the prior decision.

[00:27:03] Speaker 03:
I think that the time for that has passed, and we've accepted that decision.

[00:27:06] Speaker 03:
So I think the first area where we saw the evidence differently was that we looked at the facts here and we found that the cost of carrying tennis channel would have been less per ratings point than the cost of carrying golf channel the versus.

[00:27:19] Speaker 03:
So we thought the tennis channel would have been a better deal and yet Comcast favored its affiliates.

[00:27:24] Speaker 03:
But the court took issue with that analysis because it found there was no evidence in the record to show that ratings points correspond to revenues to benefits for Comcast.

[00:27:36] Speaker 03:
So it is true that for an MVPD like Comcast, revenues generally come not from advertising, which would clearly be bound up with ratings, but from subscriptions and subscription revenues.

[00:27:48] Speaker 03:
And it's extremely difficult to determine how much any individual channel in a cable package in isolation is driving subscriptions and subscriber turn.

[00:27:58] Speaker 03:
So what the court simply said was that there wasn't evidence substantiating that link.

[00:28:03] Speaker 03:
And let me say, until just a few moments ago, Tennis Channel had never told us what additional evidence it believes it would be able to present if the record were reopened.

[00:28:15] Speaker 03:
And I think now they're talking about expert reports with some of this information.

[00:28:19] Speaker 03:
But take a look at the briefs that Tennis Channel filed before this court in this case.

[00:28:24] Speaker 03:
We look at page 45 of Tennis Channel's opening brief.

[00:28:27] Speaker 03:
and page 17 of its reply brief, I think you'll find that Ten's channel is saying, it's impossible to know how much any given channel, or at least our channel, is driving subscriber interest and driving subscription revenues.

[00:28:41] Speaker 03:
And I think they're essentially admitting they can't and don't intend to make that showing.

[00:28:45] Speaker 06:
But then doesn't that make, I mean, isn't the commission concerned about that?

[00:28:49] Speaker 06:
That this is an unprovable, unmeasurable burden?

[00:28:52] Speaker 03:
So the court said that in an appropriate case, expert evidence might do the trick.

[00:28:57] Speaker 03:
And we think that there are cases where that could be done.

[00:29:00] Speaker 03:
But tennis channel is the one I think effectively conceding that they can't do that here.

[00:29:05] Speaker 03:
But no, I think that in the future, um, it would certainly be possible for the parties or the commission to introduce evidence of this link.

[00:29:15] Speaker 06:
Can you speak to the jurisdictional question?

[00:29:17] Speaker 06:
I really think it's important for the FCC to be clear on record what your position is about whether we have jurisdiction.

[00:29:24] Speaker 03:
Sure.

[00:29:24] Speaker 03:
So we haven't joined Comcast in that argument.

[00:29:28] Speaker 03:
I think that the standard, which comes from the Supreme Court's case in Brotherhood of Locomotive Engineers, is that a request to reopen is unreviewable unless it's based on changed circumstances or new evidence.

[00:29:40] Speaker 06:
And we take a look and even in this procedural posture, we're talking about on remand and where the request is filed within the time for petitioning.

[00:29:52] Speaker 03:
Well, so that may be another exception to treating this as jurisdictional.

[00:29:55] Speaker 03:
We don't think it's a jurisdictional issue.

[00:29:57] Speaker 03:
We do think that ultimately this is a discretionary decision for the commission.

[00:30:02] Speaker 03:
But I think that the request the tennis channel filed with us at least alleged changed circumstances from the court's previous decision.

[00:30:10] Speaker 03:
I think that might be the right way to weigh the import of that previous decision.

[00:30:14] Speaker 03:
And it also asked to submit new evidence.

[00:30:17] Speaker 03:
So

[00:30:17] Speaker 03:
We don't think that on either of those showings, what it did was sufficient for us to, in our discretion, decide to reopen the record.

[00:30:25] Speaker 03:
But I think that's the merits question.

[00:30:27] Speaker 03:
We just don't view that as a separate jurisdictional issue.

[00:30:30] Speaker 03:
That said, we'd be happy to win the issue either way.

[00:30:35] Speaker 06:
So I understand because the basis of their

[00:30:41] Speaker 06:
further proceeding from their request was change circumstances, new evidence.

[00:30:44] Speaker 06:
You're saying that's enough to obviate the potential jurisdictional.

[00:30:48] Speaker 03:
Yes, Your Honor, because otherwise you run into a difficult line drawing issue here about how much is enough and how much is enough I think is really a question about when we should choose to exercise our discretion to reopen the record.

[00:31:03] Speaker 03:
At that point, I think the jurisdictional question and the merits question essentially look like the same question.

[00:31:08] Speaker 03:
So we don't think there's anything that precludes the court from reviewing that.

[00:31:12] Speaker 03:
I do think that it was eminently reasonable and certainly not an abuse of discretion for us to decline to reopen the record here.

[00:31:19] Speaker 03:
Not only because Tennis Channel didn't tell us what additional evidence they wanted to present, but they also haven't explained why they couldn't have done that earlier.

[00:31:27] Speaker 03:
is they already had a full and fair opportunity to present any evidence in the initial proceedings before the administrative law judge, which were extensive.

[00:31:35] Speaker 03:
And we don't think that a party in Tennis Channel's position can choose to present only some evidence, seek a ruling on that partial record, in this case, have that ruling go up to this court on appeal, and still reserve the right to present additional evidence only in the event that its initial showing is deemed insufficient.

[00:31:54] Speaker 04:
Well, what about what you quoted from its

[00:31:57] Speaker 04:
that is, Tennis Channel's opening brief to this court, that it was impossible to prove.

[00:32:04] Speaker 03:
So I think that concession has now come late after the fact.

[00:32:09] Speaker 03:
But I think that was relevant to us in the sense that Tennis Channel never told us what else they think they can do.

[00:32:15] Speaker 04:
No, I understand that.

[00:32:16] Speaker 04:
But I thought you told me that in Tennis Channel's opening brief to this court in the first appeal, it had taken the position that it was impossible

[00:32:27] Speaker 03:
Oh, I'm sorry.

[00:32:28] Speaker 03:
I meant Tenge Channel's briefs in this appeal, currently, not the previous appeal.

[00:32:33] Speaker 03:
I think you take a look at the briefs in this appeal, that's where they're saying it's impossible to, at least in their view, for their particular situation, substantiate that link.

[00:32:42] Speaker 03:
We don't take the view that it's generally impossible to do, but I think they're conceding they can't do it here.

[00:32:48] Speaker 06:
Have these, just going back to the question of whether the laws change or not, has a 616 intentional discrimination case

[00:32:56] Speaker 06:
ever turned on net benefit that kind of inquiry that contest one dot taking contest where that where that is an existing standard

[00:33:06] Speaker 03:
So we've been using different terminology than Tennis Channel did.

[00:33:11] Speaker 03:
And maybe you might say slightly different terminology than the court's previous decision.

[00:33:15] Speaker 03:
But the right way, I think, to look at it here is that when Comcast offered the defense that it was just making a cost-benefit decision, the inevitable implication of that particular defense is that you should respond with cost-benefit information.

[00:33:32] Speaker 06:
Cases, prior cases that would illustrate that?

[00:33:36] Speaker 03:
I think that all we have to point the court to is Masson, which I think makes clear that cost benefit information is often essential to proving program carriage complaints.

[00:33:45] Speaker 03:
And I would point the court again to the prior panel's statements that the value of this sort of evidence should have been, quote, rather obvious.

[00:33:54] Speaker 03:
So at least in the prior panel's view, it wasn't cutting any new ground here.

[00:33:58] Speaker 03:
And let me also say that

[00:34:01] Speaker 03:
We don't see anything in the previous panel decision, which indicates that panel believed the FCC would need to conduct any further proceedings on remand.

[00:34:11] Speaker 03:
In fact, I think Tennis Channel read the decision to foreclose further proceedings on remand as we did.

[00:34:16] Speaker 03:
We did file the petition for rehearing.

[00:34:18] Speaker 03:
asking the panel to modify its decision to direct the FCC to conduct further proceedings, and the panel declined to do so.

[00:34:26] Speaker 03:
So I think the panel's understanding was in line with what we felt on remand.

[00:34:30] Speaker 03:
And I'll add that it'd be particularly odd here to require further proceedings on remand, given that two members of that panel, a majority of the panel, made clear in separate concurrences that they believe Tennis Channel's complaint needed to be denied outright.

[00:34:46] Speaker 03:
And it wouldn't make a great deal of sense to require further costly and time consuming proceedings on remand if those can be rendered moot by other entirely dispositive issues.

[00:34:55] Speaker 03:
So we think under all the circumstances here, if the prior panel had meant to require us to conduct further proceedings on remand, and that is Tennis Channel's position now, that we are required to do something more on remand, we think the court would have said so expressly.

[00:35:11] Speaker 03:
And that's what the court has done in a number of other FCC cases where it's directed us to conduct further proceedings on remand, but it conspicuously didn't do so here.

[00:35:19] Speaker 03:
And ultimately, we were trying to here just to apply our best understanding of what the court was asking us to do.

[00:35:25] Speaker 04:
But you would agree the prior panel basically had had three different approaches, and the two concurring opinions resolved the matter without any need for a remand.

[00:35:38] Speaker 03:
The two concurring opinions resolved it without need for remand, yes.

[00:35:41] Speaker 03:
Right.

[00:35:42] Speaker 04:
So untimeliness and unconstitutional.

[00:35:44] Speaker 04:
So it's just the concurrence reading a single opinion to understand what it meant when it said petition granted.

[00:35:55] Speaker 03:
Yes, so I want to be clear on how we are saying to use those concurrences.

[00:36:00] Speaker 03:
I don't think you need to take those two concurrences and piece them together to get a different judgment, although we think you could.

[00:36:05] Speaker 04:
No, I understand.

[00:36:06] Speaker 03:
What's that?

[00:36:07] Speaker 04:
I understand, but I'm just saying that you say that concurrences didn't suggest there should be a remand.

[00:36:12] Speaker 04:
Well, their disposition of the case, it would be no occasion for a remand.

[00:36:16] Speaker 03:
Their disposition would be no occasion for a remand, and I think that illuminates the panel opinion, which all the judges joined, because I don't think they would have joined that opinion.

[00:36:25] Speaker 03:
had it, they anticipated that it require further proceedings here, or at least the panel would have said that it was deferring these issues until later or reserving them.

[00:36:34] Speaker 03:
But that's not what it said.

[00:36:35] Speaker 03:
What it said is it found no need to reach those issues.

[00:36:38] Speaker 06:
But sometimes that's the best we do.

[00:36:40] Speaker 06:
We decide what we decide and we leave the rest, perhaps.

[00:36:43] Speaker 06:
to the commission on remand, and you've chosen not to take this up.

[00:36:49] Speaker 06:
But I guess we're not presented with the question of whether you could read that to permit the commission to take it up, had it wanted to.

[00:36:57] Speaker 03:
I think that's right, Your Honor.

[00:36:58] Speaker 04:
So what I thought was interesting was one of the concurring opinions says, I concur in the cogent opinion

[00:37:05] Speaker 04:
for the court, it is clear from the record that even accepting the FCC's interpretation of 616, there is no substantial evidence of unlawful discrimination.

[00:37:20] Speaker 04:
And the even accepting suggested to me that, well, there was some difference here between the single opinion and what the FCC had said.

[00:37:33] Speaker 03:
We didn't read it that way.

[00:37:35] Speaker 03:
I think that's just gesturing back at what happens on the second page of the panel's principal opinion, where it explains that it's assuming the correctness of our approach for purposes of this case.

[00:37:49] Speaker 03:
So I don't think that was meant to... A rhetorical flourish.

[00:37:51] Speaker 03:
I think it was just rhetorical flourish to indicate in a colorful way complete agreement and alignment with the principal opinion.

[00:38:01] Speaker 03:
So if that principal opinion and the concurrences are all on the same page and the concurrences are as clear as can be that there can be no further proceedings, it seems to me that is cogent evidence that the panel opinion is best understood here not to have, certainly not to have required further proceedings on remand.

[00:38:23] Speaker 03:
So I would be happy to entertain any further questions from the court.

[00:38:27] Speaker 03:
But if there are no further questions, then we ask.

[00:38:29] Speaker 04:
I just have one question.

[00:38:31] Speaker 04:
The commission said we're going to deny the request for reopening.

[00:38:39] Speaker 04:
We want to bring this matter to a close.

[00:38:41] Speaker 04:
What does that mean?

[00:38:43] Speaker 03:
So Your Honor.

[00:38:45] Speaker 04:
In turn, I'm thinking of commission cases that have gone on for decades.

[00:38:52] Speaker 03:
So this is now on this discretionary issue about whether we should reopen the record.

[00:38:57] Speaker 03:
That's where we're speaking to this, which we do think is a decision committed to the agency's sound discretion, and that's what all of the precedent holds.

[00:39:04] Speaker 04:
But I'm just saying the reason it gave

[00:39:08] Speaker 03:
So it was balancing, I think, whatever interest Tennis Channel claims to have in a second opportunity to prosecute its complaint.

[00:39:16] Speaker 03:
And we don't think it has any significant interest and certainly not any entitlement here, given that it already had a full and fair opportunity to present its case earlier.

[00:39:25] Speaker 03:
We do think that on the other side of the ledger, the agency has a significant interest, like in any court case, in finality, in certainty, and repose.

[00:39:34] Speaker 03:
And I'll say I think that's heightened here in the program carriage context, because Congress has specifically directed us by statute to resolve these disputes on an expedited basis.

[00:39:45] Speaker 03:
And this case has now been pending before the commission for more than six years.

[00:39:49] Speaker 03:
So we don't think it would be a well-warranted use of the agency's resources

[00:39:53] Speaker 03:
here to give Tennis Channel a second bite of the apple.

[00:39:57] Speaker 03:
So this discretionary decision ultimately was just a balancing of how strong an interest do we think Tennis Channel's articulated here in having a second opportunity to present its case and the countervailing interest that we have in being able eventually to bring these proceedings to a close.

[00:40:16] Speaker 03:
So I think that's where that factors into our analysis.

[00:40:18] Speaker 04:
Thank you.

[00:40:20] Speaker 03:
Thank you, Your Honor.

[00:40:29] Speaker 04:
All right, counsel for intervener.

[00:40:34] Speaker 00:
Thank you, Your Honor, and good morning.

[00:40:35] Speaker 00:
And may it please the court, Jonathan Bond for Intervener Concast.

[00:40:40] Speaker 00:
Tennis Channel's case rests squarely on two premises that are directly refuted by this Court's prior ruling, and its position would mean that many adjudicative proceedings before agencies could never end.

[00:40:52] Speaker 00:
Now, the first premise, what it calls today the single unavoidable proposition, a necessary premise to all of its arguments, is that this Court's prior decision established new tests.

[00:41:02] Speaker 00:
But this Court's opinion is clear on its face and the Commission has repeatedly acknowledged in its order here and in its brief on appeal and at argument that the prior panel decision did not establish any new tests.

[00:41:14] Speaker 00:
What Tennis Channel cites as supposedly new evidentiary tests are simply what this Court called obvious examples of evidence Tennis Channel should have put forward if it existed.

[00:41:26] Speaker 00:
Now, that ground has been covered already this morning.

[00:41:28] Speaker 00:
So I'd like to focus instead on why Tennis Channel's claim fails in any event, because its second premise is also mistaken.

[00:41:35] Speaker 00:
As Tennis Channel admitted at the time in its rehearing petition at page 11, this court did not send anything back to the FCC for further consideration, but conclusively decided the merits as a matter of law.

[00:41:47] Speaker 00:
Having failed in what this court called obvious ways, Tennis Channel should not get the windfall of a do-over before the agency.

[00:41:54] Speaker 00:
Now, we know that Tennis Channel's concession was correct for at least three reasons.

[00:41:59] Speaker 00:
First, the panel's opinion says explicitly that the Commission could not lawfully find discrimination.

[00:42:06] Speaker 00:
That's page 984.

[00:42:07] Speaker 00:
That we read as a determination that is a matter of law

[00:42:11] Speaker 00:
Tennis channel's claim fails, just like a court ruling on a Rule 50 motion.

[00:42:15] Speaker 00:
There's no way a reasonable fact finder could reach the necessary conclusion based on this evidence.

[00:42:20] Speaker 00:
And that conclusion is backed up by at least six specific statements, which we catalog at page 19 of our brief, where the court says there is no evidence, or the record lacks evidence, because tennis channel never offered that evidence.

[00:42:32] Speaker 00:
The record is simply devoid of it.

[00:42:34] Speaker 00:
So that conclusion completely disposed of the issue.

[00:42:37] Speaker 00:
Second, as the commission has already discussed, the concurring opinions provide powerful confirmation of that reading because it is simply implausible that the concurring judges who believed Tennis Channel's claim was completely foreclosed as a matter of law would have joined an opinion that let that very claim go forward.

[00:42:52] Speaker 00:
They would not have agreed to send the case back to the commission to spin its wheels.

[00:42:56] Speaker 00:
without the panel even addressing these threshold issues.

[00:42:59] Speaker 00:
And that's the only reason the panel gave for not addressing these three independently dispositive issues.

[00:43:05] Speaker 00:
The panel would at least have confronted those.

[00:43:07] Speaker 00:
And the reason it didn't was because the evidence was dispositive.

[00:43:11] Speaker 00:
That ground was completely conclusive of the case.

[00:43:14] Speaker 00:
And finally, the silence, or rather the absence of a mention regarding the remand in the opinion or mandate, actually cuts our way, contrary to Tennis Channel's argument.

[00:43:23] Speaker 00:
Because when this court intends to remand, it says so.

[00:43:27] Speaker 00:
Court has no questions.

[00:43:30] Speaker 04:
Thank you.

[00:43:34] Speaker 04:
Council for petition.

[00:43:41] Speaker 02:
May it please the Court, I'd like to just deal with three or four of the points that were made by Council.

[00:43:48] Speaker 02:
This is not a second bite at the apple.

[00:43:51] Speaker 02:
If this were a second bite at the apple, something in the Commission's decision before the panel got to it would have suggested that the Commission understood the test to be what it now says was the test.

[00:44:06] Speaker 02:
Um, there is no evidence anywhere in any of the commission's decisions in this case.

[00:44:13] Speaker 02:
Any other case that suggested that the so called foregone, foregoing benefit, foregone benefit test is itself a part of the law.

[00:44:22] Speaker 02:
We think it is.

[00:44:23] Speaker 02:
We now understand that.

[00:44:25] Speaker 02:
The Massen case, which the Commission relies on, doesn't get it there.

[00:44:30] Speaker 02:
Massen was a case in which a program service providing Washington and Baltimore television sports wanted to provide them to North Carolina.

[00:44:45] Speaker 02:
a cable system which had other sports programming and sought relief under 616, the commission correctly held that the cost and the rather small audience for Washington programming in North Carolina

[00:45:04] Speaker 02:
justified a fairly cursory conclusion that there was no business justification for the cable company in that case to carry it.

[00:45:21] Speaker 02:
We note here that no matter how this case gets sliced at the end of it,

[00:45:28] Speaker 02:
the Court had before the case in which the Commission standard, as the Commission interpreted it in its own order, was not satisfactory to the Court and contained evidence within it, and that the Commission did not provide evidence that satisfied the test that the Court raised.

[00:45:47] Speaker 02:
Under those circumstances, Your Honor, this case is a case for remand.

[00:45:53] Speaker 02:
And if it's a case for remand, under the ordinary remand rule, it is a case very much like the case of BIA versus Ventura, which was cited in our brief, where the court effectively decided that there was a new standard, said there was no evidence as Comcast and the FCC would have it, no evidence in the record.

[00:46:16] Speaker 02:
that supported the test and that there would be no reason for a remand because the case would be decided in the same way.

[00:46:24] Speaker 02:
We think that when the Supreme Court reversed that on the ground that it was entrenching deeply into the discretion, the expertise, and the authority of the administrative agency and summarily reversed the court, it was saying what we think is applicable here.

[00:46:42] Speaker 02:
There, though, it was the court

[00:46:45] Speaker 02:
that usurped the agency's proper role.

[00:46:47] Speaker 02:
Here, it was the agency abdicating the proper role that it should have fulfilled, which is to take the case back, look at the evidence we showed, ask the parties to comment on it, and then decide whether or not it would open the record for further evidence because it was very suggestive that the new test could be met even more specifically, or dismiss us.

[00:47:12] Speaker 02:
on the ground that the new test was not meetable or not met.

[00:47:20] Speaker 02:
It did none of those things.

[00:47:22] Speaker 02:
It retired behind, among other things.

[00:47:24] Speaker 02:
The cases have to come to an end.

[00:47:28] Speaker 02:
Rubric, which, as Judge Rogers has pointed out, is rather indifferently and erratically applied by this agency.

[00:47:35] Speaker 02:
The delay in the resolution of this case is certainly not the fault of Pennis Channel as the litigant in the case.

[00:47:44] Speaker 02:
We've gotten our papers on file.

[00:47:46] Speaker 02:
We did our hearing expeditiously.

[00:47:49] Speaker 02:
And this is the normal course of operation of a very complicated and difficult jurisprudence.

[00:47:58] Speaker 02:
And I suspect that the commission would not, in other cases,

[00:48:02] Speaker 02:
simply give us the back of its discretionary hand, simply on the ground, that case had taken a long time.

[00:48:10] Speaker 04:
All right.

[00:48:11] Speaker 04:
Thank you.

[00:48:11] Speaker 04:
We'll take the case under advisement.