Competitive Enterprise Institute v. Federal Communications Commission.

• Author: Gault, Brittany
• Position: Standing to challenge FCC merger conditions

970 F.3D 372 (D.C. CIR. 2020)

In Competitive Enterprise Institute v. Federal Communications Commission, the D.C. Circuit partially vacated the FCC's New Charter Order. (1) The court found that consumers had proper standing to challenge the first and third conditions (2) imposed on the merger, and subsequently vacated these conditions considering the FCC's refusal to defend on the merits. (3) The court dismissed the remainder of the appeal for lack of standing. (4)

1. BACKGROUND

   This case involved the Competitive Enterprise Institute's (CEI) challenge of merger conditions imposed by the FCC in its New Charter Order. (5) The New Charter Order approved the merger of Charter Communications Inc, Time Warner Cable, and Bright House Networks, which created New Charter, subject to specified conditions. (6) CEI, along with a handful of New Charter customers, challenged four of the conditions on New Charter in this case. (7)

2. ANALYSIS

   1. Jurisdiction

      Per the Communications Act, any individuals "aggrieved" or "adversely affected" are permitted to appeal an FCC order to the D.C. Circuit. (8) Under the Communications Act, a petition for reconsideration is only required for judicial review in cases where the party seeking review 1) was not party to the proceedings or 2) "relies on law which the commission has been afforded no opportunity to pass." (9) The FCC argued that appellants forfeited rights to seek reconsideration when they failed to file comments earlier in the proceeding. (10) Still, the court has held that the FCC may have such "opportunity to pass" even if a party seeking review never raised the issue. Here, the court found that the FCC had sufficient "opportunity to pass," citing CEI's initial filings of comments and objections made by dissenters to the New Charter Order. (11)

   2. Constitutional Standing: Causation and Redressability

      To establish constitutional standing necessary for Article III's case or controversy requirement, a party must demonstrate both causation and redressability. (12) This is more difficult to establish in cases concerning the conduct of a third party not before the court. (13) In these cases, a third party must act in a manner to produce causation and permit redressability." (14) Permissible theories of standing for third parties must demonstrate that they are not based on "mere speculation." (15) The nature of the relationship between causation and redressability was also a particular point of contention between the...