The U.S. Court of Appeals for the D.C. Circuit, in an opinion authored by Judge David Tatel and issued earlier this week, upheld a 2007 FCC order barring cable operators from entering into exclusive contracts with owners of apartment buildings, condominiums, and other multiple dwelling units (MDUs).1 The court’s three-judge panel disagreed with contentions of the National Cable & Telecommunications Association (NCTA) and certain national real estate associations that the FCC had (1) applied Section 628(b) of the Communications Act too broadly and (2) failed to adequately explain its change of position from a 2003 order allowing exclusive contracts in MDUs. The court also held that applying the exclusivity prohibition to MDU contracts entered into prior to the date of the FCC’s order was not unlawfully retroactive.
The D.C. Circuit’s affirmation of the FCC’s expansive reading of its authority under Section 628(b) of the Communications Act may set the stage for the FCC to use that provision to address other competitive issues affecting cable operators.
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