United States DC Circuit

Comcast's petition for review of the FCC's policy regarding "low-cost, limited capability" set-top converter boxes is denied where: 1) petitioner is not entitled to a waiver under section 629(c) of the Telecommunications Act since it would undermine the FCC's policy of advancing common reliance on an identical security function, and petitioner already has an incentive to offer new services and high-value features; 2) FCC's interpretation of a 2005 Order was not unreasonable when it deemed plaintiff's low cost boxes to be too advanced for waiver; and 3) the FCC's denial of waiver requests is not discriminatory or inconsistent since staff level inconsistency does not render an agency action arbitrary.

Appellate Information

• Argued 04/08/2008
• Decided 05/16/2008
• Published 05/16/2008

Judges

• Before:  GINSBURG and GRIFFITH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Court

• United States DC Circuit

Counsel

• For Appellant:
  
• David P. Murray argued the cause and filed the briefs for petitioner., Raymond L. Gifford and Adam M. Peters were on the brief for amici curiae Americans for Prosperity, et al. in support of petitioner.


• For Appellees:
  
• Matthew B. Berry, General Counsel, Federal Communications Commission, argued the cause for respondents.   With him on the brief were Thomas O. Barnett, Assistant Attorney General, U.S. Department of Justice, Robert B. Nicholson and Robert J. Wiggers, Attorneys, Joseph R. Palmore, Deputy General Counsel, Federal Communications Commission, Richard K. Welch, Acting Deputy Associate General Counsel, and Laurence N. Bourne, Counsel.  James J. Fredricks, Attorney, U.S. Department of Justice, Daniel M. Armstrong, Associate General Counsel, Federal Communications Commission, and Joel Marcus, Counsel, entered appearances., Robert S. Schwartz argued the cause for intervenor Consumer Electronics Association in support of respondents.   With him on the brief were Julie M. Kearney and Mitchell L. Stoltz., Daniel L. Brenner and Neal M. Goldberg were on the brief for intervenor National Cable & Telecommunications Association in support of respondents.