"I am gratified that the court reversed the FCC's determination that Comcast discriminated against the Tennis Channel by refusing to accept the Tennis Channel's demand that it be moved in the middle of its contract term to a broader distribution tier. The court's conclusion that the Commission had nothing to refute Comcast's contention that its rejection of the Tennis Channel's demand was based on anything other than a straight-up financial analysis, not a discriminatory motive, seems entirely correct. That being the case, the court properly concluded that the FCC erred in finding that the alleged discrimination was based on an anticompetitive motive, rather than a proper business burpose.

Judge Kavanaugh's concurring opinion warrants special attention -- and praise. He concluded that Section's 616 prohibition on discrimination only applies when a video program distributor possesses market power and that Comcast does not possess market power in the national video programming distribution market. According to Judge Kavanaugh, applying Section 616 to a video programming distributor that lacks market power not only contravenes the Communications Act, but the First Amendment as well.

Judge Kavanaugh's opinion is especially gratifying because I have made these very same points for many years now, including in the Tennis Channel case itself. See "The Tennis Channel Ruling: No Mere Foot Fault" (December 2011) and  "The FCC and the Rule of Law" (July 2012). I've long argued that the FCC's regulations of the content of video providers' offerings violate the First Amendment in today's competitive video marketplace."

* * *

Randolph J. May, President of the Free State Foundation, is a former FCC Associate General Counsel and a former Chairman of the American Bar Association's Section of Administrative Law and Regulatory Practice. Mr. May is a public member of the Administrative Conference of the United States, and in 1995.

Mr. May is a nationally recognized expert in communications law, Internet law and policy, and administrative law and regulatory practice. He is the author of more than 150 scholarly articles and essays on communications law and policy, administrative law, and constitutional law. Most recently, Mr. May is the editor of the new book, "Communications Law and Policy in the Digital Age: The Next Five Years." He is the author of A Call for a Radical New Communications Policy: Proposals for Free Market Reform, and he is the editor of the book, New Directions in Communications Policy, and he is co-editor of other two books on communications law and policy: Net Neutrality or Net Neutering: Should Broadband Internet Services Be Regulated? and Communications Deregulation and FCC Reform.