Court of Appeals Rejects FCC's Cable Subscriber Cap

olsmeister writes "The US Court of Appeals Friday threw out the FCC's cap on the number of cable subscribers one operator can serve, saying the FCC was 'derelict' in not giving DBS its due as a legitimate competitor. 'We agree with Comcast that the 30% subscriber limit is arbitrary and capricious. We therefore grant the petition and vacate the Rule,' said the court, which concluded that there was ample evidence of an increasingly competitive communications marketplace and that cable did not have undue control on the programming pipeline. The FCC commissioner's statement (PDF) is available online."

Oh boy

[Anonymous Coward]

Think customer service is lousy now? Just wait until they add a few million more customers!

hahaha

Not around here

[SomeJoel]

"an increasingly competitive communications marketplace"

Where I live, there's only one cable company to choose from. They must be counting DirecTV and the like as "competition", because I've only once in my entire life had the ability to choose from two cable companies. And that didn't last long either, because the one I picked (the smaller, better one) got bought out by the large, crappier one after about a year. And I personally don't count DirecTV as an adequate "replacement" for cable.

Re:

[RajivSLK]

And I personally don't count DirecTV as an adequate "replacement" for cable.

Just curious, why not? Up here in Canada I have satellite tv. I could have cable for the roughly the same cost but I choose not to because like satellite better (for various small reasons).

Re:

[Nakago4]

Not everyone has an unobstructed view to the south. What if you live on the north side of an apartment building? or have lots of trees in the way? or a tall building? Satellite is simply not an option for a large number of people.

Re:

[shentino]

Hey, leave the lady in flannel alone!

Re:

[Anonymous Coward]

Not everyone has an unobstructed view to the south. What if you live on the north side of an apartment building? or have lots of trees in the way? or a tall building?

Satellite is simply not an option for a large number of people.

What about for those of us who live IN the South and have apartments facing the North? Are we in some sort of netherworld since we have clear views of the South, yet are perpetually facing our Yankee neighbors?

Re:

[tagno25]

If you are in the souther hemisphere then this is not an issue since the FCC is in the USA (northern hemisphere).

Re:

[Darinbob]

I count satellite as replacement for cable. When I got it, I could only get analog cable, for more than the cost of satellite, with fewer channels, and a stupid a/b switch. Digital cable was nearly double that. Larger companies and economies of scale means you pay more and get less? The only reason cable can compete is because the infrastructure is built into so many houses and apartments already.

Re:Not around here

[dgatwood]

It's a replacement for cable TV. It is not a full replacement for everything cable provides these days. Want Internet service? Hope you like 500ms latency.

Re:

[Darinbob]

Yeah well, cable doesn't help me with internet anyway. DSL does ok. And satellite+dsl was still cheaper than digital cable w/o internet. Don't necessarily want to drag ethernet cables across the floor and upstairs (yeah, yeah, wireless, I know).

Maybe the problem here is that all these services come bundled once you get cable, and you're stuck ever trying to get them separated. Ie, you want a cable modem, but satellite TV, then good luck. Or better yet, try to get cable tv from Comcast and cable internet

Re:

[tepples]

DSL does ok.

If you have the money to move closer to the DSLAM.

Re:

[L0rdJedi]

Our local cable company is TimeWarner. When we switched our tv to DishNetwork, I actually had no problem calling them up and telling them I wanted to cancel the cable TV and keep the Internet service. They sent someone out to put a filter on the line and that was that.

Comcast seems to be pretty crappy. TimeWarner is wonderful in comparison. I am glad TimeWarner took over in my area.

Re:

[hazydave]

Actually, it's more than 500ms latency... more like 750ms+ by the time you're done with additional layers of routing/optimization software, on top of that trip from earth to space and back.

And when the locals of all sorts (Verizon, Comcast, etc) refuse you any sort of land-based connection, this is one of the few options (the other being cellular modem, which has its own set of problems and availability issues).

Re:

[soupcan58]

I know in my area, it's Comcast or satellite for most of the area. We don't have Fios, AND we don't have Uverse in very many areas. There's just not much of a chance.

Re:

[MadnessASAP]

Where do you live? Friggin Mercury?

Re:

[Migraineman]

I have the same problem in a suburb of Washington DC. Based on the availability, you'd think it was Mercury. Trees are a major problem re: DirecTV, and Fios isn't anywhere nearby (in spite of a Fios backbone crossing the road I can see from my community.)

Re:

[hazydave]

Satellite TV offers all of the same real channels as cable, and it's probably lower cost than most cable services. It'll fade out in severe rain, but other than that it's very reliable.

What you miss, versus cable, are real interactive services (they can fake it a bit, or let you uplink via your internet connection... which you probably don't want to do, given that, when you have satellite TV, you probably have bandwidth-policed satellite internet as well). So you can't get real video on demand, the kind of

Re:

[uvajed_ekil]

My choices for broadband ISPs are pretty much limited to Time Warner Cable, AT&T DSL, Earthlink (billed and provided entirely by AT&T or TWC, at their same prices), or one of a few other DSL providers (also basically just slightly rerouted versions of AT&T), or perhaps paying out of my rear end for high-latency wireless. In 1995 or 1996 or so, I had my choice of numerous ISPs offering a wide array of services and pricing plans, including a slew of local companies, some of which provided very use

Re:

[apoc.famine]

The answer to your question is that this is a Federal Court. Sure, from a Federal standpoint, there's competition. From a local one, you're spot on that there is none.
 
It looks like the court looked around, and said, "There's Charter, Comcast, Time Warner....looks like competition to me!" Look a little closer, at one state, one town, and the reality is far different.

Re:

[hazydave]

When you're in a locale, as I am, where the only choices are Dish Network or DirecTV, you realize very quickly that those are "competition". Well, ok, there's HughesNet for internet connections, as well.

One doesn't have to be all that competitive to be considered "competition"... I pay something like $120 a month for HugesNet, 1.5Mb/s down, 0.5Mb/s up, and a daily high-speed cap of 500MB (over that, and you get dial-up-or-so speeds for the next 24 hours). Anyone with access to basic DSL would laugh at this

Reminds me of the comcast bandwidth usage

[gravos]

Reminds me of the uproar over Comcast disconnecting users with excessive bandwidth usage, except here we went from clear, obvious limit to unclear, ill-specified limit.

Instead of a fixed limit of 30% now there will be an arbitrary install base beyond which comcast becomes liable to antitrust investigations.

Re:

[Saysys]

There are already laws and limitations regarding how much ownership constitutes an oligopoly or a 'virtual monopoly'. What we need is to realize that the only solution to the 'last mile' problem is public ownership of the last mile which is then opened up to competition.

Re:

[afidel]

No, it means there will be THE cable company, kind of like Ma Bell was THE phone company. This is just setting TV up for a repeat of the Clearchannel effect.

Ambigious Emotions

[hardburn]

. . . concluded that there was ample evidence of an increasingly competitive communications marketplace and that cable did not have undue control on the programming pipeline.

I just crapped my pants, but I'm not sure if it was from laughter or fear.

Re:Ambigious Emotions

[sexconker]

If it was one giant log, fear.
If it was a bunch of smaller turds, laughter.

I am completely serious.

Re:

[geekoid]

It's true in my area, and many other ares. I can get Comcast, Fios, two different satellite companies.
Sounds like ample competition to me.

Re:

[GasparGMSwordsman]

1) We are talking about cable not internet service in this case.

2) Satellite availability depends on being able to have a satellite. If you rent, which more than half of the U.S. population does, you probably don't have this option.

In my area (Portland Oregon). I have one option for cable, comcast. Why is there not another cable provider in my area? Because comcast has bought them all...

What the FCC policy should be is that a service provider can not buy out another service provider if it means t

Re:

[Anonymous Coward]

Usually it is because the local municipality signed an agreement to give them a monopoly. Similar to how the same municipalities force you to use the garbage company THEY selected and won't let you choose an alternate one. Cable is the same way in many places. Certainly it is where I live and I have seen enough posts on other cable stories to know it is the same in a lot of other locales as well.

Re:

[BradleyUffner]

I've rented 4 apparetments in 3 states in the past 8 years. Every one specifically allowed "Pizza box" sized satalite receivers in the lease.

Re:

[L0rdJedi]

I've rented 4 apparetments in 3 states in the past 8 years. Every one specifically allowed "Pizza box" sized satalite receivers in the lease.

The problem isn't that they don't allow it (they usually have to), the problem is that many apartments do not have an unobstructed view of the southern sky. I know at least two people at work that have this problem.

Satellite is great if you own or rent a house and can get a clear view of the southern sky (not usually a problem on a house).

Read the Headline Again

[HiggsBison]

I just crapped my pants, but I'm not sure if it was from laughter or fear.

The headline says "...Rejects FCC's Cable Subscriber Cap".

It's "Subscriber Cap", not "Subscriber Crap".

(Yeesh!)

Re:

[Chrutil]

Hahaha - I can't believe your got a +5 Informative for telling everybody you just crapped you pants.

Re:

[Viceroy Potatohead]

If you're uncertain, maybe it was both?

Seriously though, the only time cable hasn't had "undue control on the programming pipeline" in my area was when it only offered about eight channels, and the rabbit ear option picked up five. We're thirty years past that point, though. I suppose satellite TV is cheap enough now, but it's not ubiquitous enough to say cable has lost that control, IMO.

Increasing competition?

[elashish14]

Then why do the courts not force cable companies to share their lines with competitors? (Maybe that decision was exclusive to internet?)

We dumped Comcast years ago because they would raise their rates arbitrarily and with no limit. And yet the courts have this delusion that their is competition - then why are they allowed to do this? Sure....

Re:

[L0rdJedi]

The courts should be requiring the municipalities to install the last mile cable, not the cable companies. The courts shouldn't be forcing any company to share the infrastructure they've built. Notice that you have no choice over what water, electric, or gas company you use. I know I wouldn't like it if some court said "You have to let brand X use the infrastructure that you spent millions of dollars building".

This is the real problem and it's the reason why you're phone and cable companies are determine

limiting

[gmermnstinsmermwords]

It's good not to limit how many people can connect to the fastest last mile infrastructure avaliable to them. As long as cable is required to push %30 of data pertaining to developing newer last mile infrastructures. God's will- it cannot be undone!

seems like activist judging by conservatives

[Trepidity]

Congress clearly empowered---in fact required---the FCC to set subscriber caps on cable operators in the Cable Act (1992). The court striking down these limits appears to be engaging in legislative policy analysis that is Congress's purview, not the D.C. Circuit's. It may be true that non-cable competition, such as from DirecTV, means that horizontal ownership limits within the cable industry itself are no longer as necessary to maintain overall competition as they were in 1992. But that's a decision for Congress, not the D.C. Circuit, to make.

I mean the court pretty brazenly admits as much. From the decision:

Satellite and fiber optic video providers have entered the market and grown in market share since the Congress passed the 1992 Act, and particularly in recent years. Cable operators, therefore, no longer have the bottleneck power over programming that concerned the Congress in 1992.

What they appear to have failed to explain is how the fact that circumstances have changed since Congress passed the 1992 Act, so that the factors that "concerned the Congress in 1992" arguably no longer apply, ought to make any difference as far as the court's job is concerned. Regardless of whether the factors that concerned the Congress in 1992 still apply, the Act remains in force until repealed or amended, and the D.C. Circuit is not empowered to repeal or amend it. Ignoring the text of the statute and substituting this sort of policy analysis --- "we're pretty sure Congress intended to do something with this act that no longer applies, so we're going to assume Congress would've wanted it amended, and we'll just go ahead and amend it right now" --- is lawless judicial activism at its worst.

Re:seems like activist judging by conservatives

[chazzf]

Well, no. If you look at the text of the law itself (USSC 47 533 (f)) (http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000533----000-.html), the FCC was given the power to "ensure that no cable operator or group of cable operators can unfairly impede, either because of the size of any individual operator or because of joint actions by a group of operators of sufficient size, the flow of video programming from the video programmer to the consumer", among other provisions. The court's position is that the 30% rule, which the FCC first adopted in 1993, no longer complies with the meaning of the Act because the marketplace has changed. The court cites, among other things, the growth of both dish services and the entrance of telephone companies into the television market. The court was also dubious of the methodology the FCC used to devise and defend the 30% rule. These are valid questions for a court to consider and completely within its remit.

Re:

[Trepidity]

I can see people taking issue with some parts of my post (perhaps this could be defended as non-activist), but it'd be hard to argue that Reagan administration member and Reagan judicial appointee Douglas Ginsburg isn't "a conservative".

Court of Appeals is fracking retarded.

[girlintraining]

Since when does a dialup modem hung off the side of a satellite dish constitute "competition"? Seriously, I want to go up to this judge and ask "Are you from the past?" This is like saying that a Ford Festiva competes with a [insert sports car guys drool over here]!

* Yes, my knowledge of cars is limited... I drive a purple Saturn. That is as much as I know about the car. But Slashdot loves car analogies, so work with me here.

Re:Court of Appeals is fracking retarded.

[Dyinobal]

This is like saying that a Ford Festiva competes with a [insert sports car guys drool over here]!

Megan Fox?

Re:

[girlintraining]

Megan Fox?

Last I checked, Megan Fox was not a car. That said, that scene [fanpop.com] in transformers... not as fabulous as Audrey but still zomfg jasdfl;jf2!@!!!!!. (fangirl-to-geek translation: "I'd hit it")

Re:

[chazzf]

Whereas I'd ask where you live that you somehow have cable but not DSL + dish.

Re:

[prshaw]

I live in St Louis and can say that I have DSL and a dish, but cannot get cable. They won't run a wire down my road.

Up until about 3 years ago I couldn't even get DSL, I paid for a dedicated dialup.

So there are still places in some largish cities without a full set of options.

Re:

[afidel]

Uh, many places. DSL has serious distance limitations. I'm ~28k feet from the CO which means DSL is 144Kbps max, not exactly a competitor to my 10/1Mbps cable.

Re:

[GoodNicksAreTaken]

You work for Bresnan Communications don't you.

Re:

[russotto]

Since when does a dialup modem hung off the side of a satellite dish constitute "competition"?

Irrelevant. This rule applies to cable TV services, not to cable Internet services.

Re:

[tepples]

Since when does a dialup modem hung off the side of a satellite dish constitute "competition"?

Irrelevant. This rule applies to cable TV services, not to cable Internet services.

In most towns, you can't get cable Internet service from company A if the town has selected company B as the exclusive provider of cable TV.

It is OK now, but watch out for the future

[140Mandak262Jamuna]

Today with phone companies cable companies and DBS offering TV there is adequate competition. But in the future, with Verizon investing so much of money in getting fiber to premises, essentially others wont be able to compete in the future. We are looking at de facto monopoly. Given that TV and internet are converging into one, this would prove to be a big issue in the future.

Verizon fiber

[danknight]

not exactly on topic but the fios ride may be over in favor of 4g, trials are getting underway, results of which will determine if fios will be expanded much further. there is a rumor of a 4g wireless set top box that will be a self install similar to what they do with dsl and fios stb adds

Re:

[apoc.famine]

4G will still be susceptible to interference from all sorts of things, from weather to foliage, metal, other transmissions, etc. While there are plenty of places it makes sense, there are also plenty of places where it doesn't.

Most cities already have a wire system, from power to phone to cable. Adding another cable to it isn't that much of a big deal, and you are immune to interference. Of course, "good enough" [slashdot.org] might mean we see 4G instead of fiber, since lost packets and slow speeds aren't really

Re:

[hazydave]

Residential 4G will most likely be done via rooftop antennas, in rural areas anyway. 700MHz isn't that bad through foliage, it's also pretty reasonable for long range. Of course, the longer wavelength also will benefit from rooftop use... at 1 mile range, the fresnel zone radius is 43ft.

4G for residential internet is not going to be competitive with wired solutions... you would need too many cells in a city, and at higher frequencies (less range, more bandwidth and smaller fresnel radius), and you're still

Re:

[hazydave]

Well, LTE (eg, the 4G protocol embraced by everyone but Sprint, who are using WiMax) will offer what sounds pretty good: peak download rates of 326.4 Mb/s and upload rates of 86.4 Mb/s for every 20 MHz of spectrum. But then you have to take into account, that's spread across a potential of 800 active data clients (200 active clients per 5MHz)... and that not every cell is going to have 20MHz channels to play with. Many will stick to 5MHz channels, which means 81.6Mb/s down, 21.6Mb/s up, spread across as man

what about

[FudRucker]

when cable broadband oversells their service and they have more customers than their system can handle? i guess they can do that all they want now?

well look at the bright side of this economic recession = less people can afford broadband internet so there is more broadband to go around.

Some links

[chazzf]

Full text of the case, Comcast Corporation v. FCC, available here: http://pacer.cadc.uscourts.gov/common/opinions/200908/08-1114-1203454.pdf [uscourts.gov]. The case was heard by a three-judge panel of the Court of Appeals for the District of Columbia. Douglas Ginsburg wrote the opinion, joined by Brett Kavanaugh and Raymond Randolph.

Re:

[UdoKeir]

Looks like it was a panel of Republican appointees. Hardly surprising they come out on the side of the corporations.

http://en.wikipedia.org/wiki/Douglas_H._Ginsburg [wikipedia.org]
http://en.wikipedia.org/wiki/Brett_Kavanaugh [wikipedia.org]
http://en.wikipedia.org/wiki/Arthur_Raymond_Randolph [wikipedia.org]

I'm lagging as I type this.

[Anonymous Coward]

I so want to get out of comcast. Is really slow for browsing, gaming, netflix etc. The cherry on top is that they now they enforce their own "non existent web address" page, and if you would like to opt out you have to provide them your mac address. Sounds wonderful.

Re:

[not_anne]

You mean the modem macid they already have? As I understand it, all they're doing is putting your macid on a list so your browser isn't redirected.

Re:

[L0rdJedi]

Ya know, you could just, oh, I don't know, redirect it in your hosts file to 127.0.0.1. That worked just fine for me when I had their service.

Geezus, the things slashdotters will complain about.

Real competition from FiOS

[punker]

I think rules like this from the FCC are the least of comcast's worries. After a year of crappy quality service from Comcast, I switched to FiOS from Verizon (it wasn't available where I live when I first signed up for Comcast). For the same price, I now get dramatically better internet service (5/2 Mbps down/up). What I was really surprised by was how much better the television service is. The channels are much clearer, and I get a ton of good channels in the base package. The guide works much better as well.
                If AT&T's uverse is on the same level, then I would expect the cable companies are facing real competition from the traditional telcos.

Re:

[misexistentialist]

5/2? I think they should switch to vibrating internets if light moves so slowly in your neighborhood.

Re:

[freedom_india]

5Mbps down?
Wow!
In India i get 16Mbps down, and 4.4Mbps Up with a 100GB per month traffic limit at $100/- per month.
Oh and that includes IP TV, a free TiVO so i can record, rewind and watch shows i missed.

Re:

[marnues]

Depending on the quality of thr IP TV, that's not necessarily a good deal around here. $100 a month should get you a hell of an internet access. However, I think the GP is confused about their speeds as the lowest FiOS speed is 15/5 for $55/month.

Re:

[freedom_india]

Oh... OK.
I guess i understood it wrong.
My Apologies.

Re:

[soundguy]

My business-class FIOS in Seattle is 20/20 with a static IP. I run servers on it. No caps. No limits. About $130 a month. That's like $6.50 a megabit. I can't even get Cogent for that in a carrier-neutral facility unless I commit to a gigabit for 2-3 years. The hardware at the house seems to be clocked for 256mbps and everyone I've talked to says the fiber they use for drops is theoretically good for a gigabit. (no idea what's out there on the road lead though)

I currently have analog Comcast cable, but they

New York City...

[djrok212]

New York City is a pretty big market by most counts, however in most of the city Time Warner is your ONLY choice for cable service. On top of that, most apartment buildings don't allow for the installation of satellite dishes, so Direct TV and Dish Networks are both out as options.

why this is bad.

[DragonTHC]

The cable industry thinks this is a victory. It is for them, it's a huge loss for consumers.

Cable companies aren't forced to enhance their infrastructure to handle the extra subscribers, so consumers get lower quality service.

The subscriber cap was meant to preserve the quality of service for consumers. Now there is no recourse.

Re:

[account_deleted]

Comment removed based on user account deletion

Re:why this is bad.

[caladine]

You'd be surprised how many areas only have one broadband provider. DSL isn't an option at my house (can only get ISDN speeds here), and Verizon/AT&T only laugh at me when I ask when service might be available through them. Comcast has a monopoly here, and service only gets more expensive and less reliable. At my father's house, he has a huge list of choices. Good DSL, a cable company that actually has to compete, and AT&T uverse. Actual competition, and it shows. Not only does he get more services for his money, it's more reliable, and he's spending $50+ less per month that I do (no, he's not even paying a promotional price right now).