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Cablevision Sys. Corp. v. FCC, No. 07-1425, concerned a petition for review of the Federal Communications Commission's (FCC) decision to extend for five years a statutory prohibition against exclusive contracts between cable operators and cable affiliated programming networks.
The court of appeals denied the petition, holding that: 1) petitioners failed to make a specific, as-applied First Amendment challenge in their briefing and thus waived the issue; and 2) conclusions based on FCC's predictive judgment and technical analysis are just the type of conclusions that warrant deference.
As the court wrote: "In these consolidated cases, Cablevision Systems Corporation and Comcast Corporation petition for review of the Federal Communications Commission's decision to extend for five years a statutory prohibition against exclusive contracts between cable operators and cable affiliated programming networks. Petitioners assert that the Commission misinterpreted the plain meaning of the underlying statute. In addition, they argue the Commission's decision was arbitrary and capricious and therefore violates the
Administrative Procedure Act (APA). Lastly, petitioners claim the decision fails under First Amendment intermediate scrutiny. We hold that the Commission's interpretation of its statutory mandate was reasonable. Because we also hold that the Commission's decision satisfies arbitrary and capricious review, and that intermediate scrutiny is not applicable, we deny the petitions for review."
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