DC Circuit Junks Some FCC Curbs on Charter/TWC/BHN

A key federal appeals court vacated some FCC conditions on Charter Communications' buys of Time Warner Cable and Bright House Networks. Then-FCC Commissioner and now-Chairman Ajit Pai and Commissioner Mike O’Rielly originally voted against the deal curbs. Appellants are several consumers and the Competitive Enterprise Institute.

The U.S. Court of Appeals for the D.C. Circuit ruled 2-1 against the commission prohibiting "New Charter," as the combined company is referred to, from charging programmers for access to its broadband subscribers. It also ruled against requiring New Charter to provide discounted broadband service to low-income subscribers. Judge Gregory Katsas wrote the opinion for himself and for Karen LeCraft Henderson. David Sentelle dissented.

Noting appellants include customers "whose bills for cable broadband Internet service increased shortly after the merger," the majority opinion said they had standing to challenge two conditions. The ruling vacates those curbs "given the FCC’s refusal to defend on the merits." The judges "set aside the interconnection and discounted-services conditions in the New Charter Order, and we dismiss the remaining aspects of the appeal for lack of an appellant with Article III standing."

Sentelle wouldn't "reach the merits at all because CEI lacks standing to challenge any of the proposed conditions. I do concur with the majority’s analysis and conclusion that CEI does not have standing to challenge the condition concerning charging subscribers based on data usage or the condition requiring New Charter buildout its cable infrastructure."

The FCC declined to comment. Charter said it had no immediate comment. CEI didn't comment right away after the decision was issued Friday morning.