# Time Warner Entertainment Co., L.P. v. Federal Communications Commission United States of America, Nynex Corporation, Intervenors

> Court of Appeals for the D.C. Circuit · July 17, 1995 · 56 F.3d 151

URL: https://www.frixlaw.com/law-library/cases/9488118

## Case

- **Full name:** TIME WARNER ENTERTAINMENT CO., L.P., Et Al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; United States of America, Respondents, Nynex Corporation, Et Al., Intervenors
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** July 17, 1995
- **Citations:** 56 F.3d 151; 312 U.S. App. D.C. 187
- **Precedential status:** Published
- **Opinion:** Dissent by Randolph
- **Judges:** Ginsburg, Per Curiam, Randolph, Rogers
- **Cited by:** 72 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow by Southwestern Pennsylvania Growth Alliance v. Browner, 121 F.3d 106 (1997).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9488118

## How later opinions describe it (automated extraction)

- holding that when a statute by its terms requires the Commission to consider certain factors "[t]hat means only that [the FCC] must 'reach an express and considered conclusion' about the bearing of a factor, but is not required 'to give any specific weight' to it." (internal c…
- holding that when the Commission is obligated to consider certain factors, “[t]hat means only that [the FCC] must ‘reach an express and considered conclusion’ about the bearing of a factor, but is not required ‘to give any specific weight’ to it.” (citation omitted)
- finding that a party's reference to an argument in a footnote in its brief that was neither explained nor properly developed was insufficient grounds for standing
- declining to read additional requirements into § 543(b)(2)(C)(i), which directs the FCC to “take into account ... the rates for cable systems, if any, that are subject to effective competition”
- noting that the Third Order on Reconsideration treats the negative billing option section of the 1992 Act as a consumer protection provision rather than a rate regulation provision

## Opinion text

RANDOLPH, Circuit Judge,
dissenting in part:
I disagree with the majority’s decision insofar as it rejects the Federal Communications Commission’s interpretation of 47 U.S.C. § 543 (Z)(1)(B).
Here is § 543(Z )(1)(B) in its entirety:
As used in this section—
(1) The term “effective competition” means that—
******
(B) the franchise area is—
(i) served by at least two unaffiliated multichannel video programming distributors each of which offers comparable video programming to at least 50 percent of the households in the franchise area; and
(ii) the number of households subscribing to programming services offered by multichannel video programming distributors other than the largest multichannel video programming distributor exceeds 15 percent of the households in the franchise area....
The immediate interpretative question is whether the “multichannel video programming distributors” in § 543(Z )(l)(B)(ii) are only those mentioned in § 543(i )(l)(B)(i)— unaffiliated, having comparable programming, and offering it to 50 percent of households. The question is of considerable regulatory importance. Distributors are immune from the Commission’s ratemaHng rules if they are subject to “effective competition,” if they are, in other words, in a franchise area meeting § 543(Z )(l)(B)’s description. Under the Commission’s reading, effective competition does not exist unless the distributors satisfying part (i) are the ones whose subscribers add up to more than 15 percent under part (ii). The majority, on the other hand, views it as irrelevant whether the more-than-15 percent consists of distributors who satisfy (i); any distributors will do.
To appreciate the difference, consider an area where one distributor has signed up 84 percent of the households. One of its competitors offers comparable service to more than half of the households, but only 6 percent subscribe. Two other minor players in the area each have a 5 percent share. In this example, the Commission would not find “effective competition.” My colleagues would, because the “multichannel video programming distributors” mentioned in (ii) are not confined to any particular category.
In examining these competing interpretations, we must first decide whether § 543(Z )(1)(B) is employing what, in the science of language and the mind, is called “co-reference.” Professor Pinker gives this illustration: “Say you start talking about an individual by referring to him as the tall blond *204 man with one black shoe. The second time you refer to him in the conversation you are likely to call him the man; the third time, just him. But the three expressions do not refer to three people or even to three ways of thinking about a single person; the second and third are just ways of saving breath.” Steven PinkeR, The Language Instinct 79-80 (1994).
Now look at § 543(i )(1)(B). The first thing I notice is that if the class of distributors mentioned in (ii) is in no wise limited by the class of distributors comprising (i), the statute appears rather senseless. My reasoning is this. The provision describes effective competition. There cannot be competition if all the distributors in the area are divisions of the same company. Congress knew this. That is why you cannot get beyond (i) unless the distributors are “unaffiliated.” While (ii) does not expressly contain that qualifier, one would think the distributors in (ii) must also be “unaffiliated.” Why? Because it would be absurd to think that when one division of a company holds an 84 percent share of the market and another division of the same company holds 16 percent, there would be “effective competition.” (To simplify analysis, I have assumed that an unaffiliated distributor offered service to everyone, thereby satisfying (i), but no one subscribed.) Notice also that (i) requires that the competing distributors offer “comparable service,” while (ii) does not mention this qualifier. The idea behind (i) must be that “effective competition” entails head-to-head competition. When the dominant distributor offers 50 channels and the nondomi-nant distributor offers only 5, subsection (i) is not satisfied. The service is not “comparable.” See 47 C.F.R. § 76.905 (g). If the “comparable service” qualifier in (i) does not limit the class of distributors in (ii), the result strikes me as exceedingly odd: “effective competition” could be said to exist although those making up the 15 percent share under (ii) consisted solely of distributors offering services markedly inferior to the dominant distributor’s.
If my analysis thus far is correct, the majority may be quite mistaken in saying that subsection (i) “does not limit in any way the cable companies to be considered in aggregating subscribership” under subsection (ii). Since (i) appears to limit (ii) at least in regard to the affiliation qualification, it is plausible to suppose that it also limits (ii) regarding the 50-percent-offering qualification — that what we have here is indeed co-reference. In other words, (ii) would be interpreted as if it said: “the number of households subscribing to programming services offered by [such or those or said, or perhaps even just the] multichannel video programming distributors other than the largest multichannel video programming distributor exceeds 15 percent of the households in the franchise area.”
One way of testing the plausibility of this reading, which is the reading embraced by the Commission, is to see how others presumably familiar with the language of the statute read it. See A. Raymond Randolph, Dictionaries, Plain Meaning, and Context in Statutory Interpretation, 17 Haev.J.L. & Pub.Pol’y 71, 77 (1994). The House Committee that drafted § 543(Z)(1)(B) stated in its report that “effective competition” would exist if “at least two sources of multichannel video programming are offered to 50 percent of households and subscribed to by at least 15 percent of households.” H.R.Rep. No. 628, 102d Cong., 2d Sess. 89 (1992). The Conference Committee explained that effective competition would be present if a franchise area “is served by at least two unaffiliated [distributors] offering comparable video programming to at least 50 percent of the households in the franchise area, and at least 15 percent of the households in the franchise area subscribe to the smaller of these two systems.” H.R.Conf.Rep. No. 862, 102d Cong., 2d Sess. 62 (1992), U.S.Code Cong. & Admin.News 1992, p. 1244. Both statements tend to support the Commission’s reading; they assume that the 15 percenter in (ii) is the same distributor as one of the 50 percen-ters in (i). I do not mean to place great significance on these statements. The Commission forthrightly acknowledged that *205 “[n]either report addresses the specific issue confronting us here: how to measure the subscribership if there is more than one competitive multichannel video programming distributor in the franchise area.” Implementor tion of Sections of the Cable Television Consumer Protection and Competition Act of 1992: Rate Regulation, Report and Order and Further Notice of Proposed Rulemaking, 8 F.C.C.R. 5631, 5664 n. 116 (1993).
Where does all this lead? I think the language of § 543(i )(1)(B) yields no firm conclusion, certainly no “plain meaning” as the majority supposes. True, unlike subsection (i), subsection (ii) contains no modifiers of “multichannel video programming distributors.” But to say that the distributors of (ii) are therefore not limited to the distributors of (i) is to beg the question. Does the absence of a “such” or a “those” or a “said” or a “the” signify a difference between the classes of distributors in the two subsections, or is this merely inartful drafting? Would a congressional reader necessarily come away with the majority’s view of the statute? With all due respect to my colleagues, the only honest answer to these questions is, in my view, “Maybe, and maybe not.” Given this state of affairs, the Commission’s plausible interpretation, an interpretation based on the sort of policy choice the Commission is entitled to make, should have carried the day.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9488118. Public record. Not legal advice.