The Commission frames the ultimate question in this proceeding as “whether current conditions in the video distribution marketplace support retaining, sunsetting or relaxing the exclusive contract prohibition.”1. Actually, the question is more properly stated as “whether current and future conditions in the video distribution marketplace will support retaining, sunsetting or relaxing the exclusive contract prohibition.” If, in the absence of the rules, the marketplace would not remain as competitive as it is now, much less become more competitive in the future, the Commission cannot make the requisite finding under Section 628(c)(5) that relaxing or repealing the exclusive contract provision is unnecessary “to preserve and protect competition and diversity.” The focus on future conditions is especially significant, because the Commission – and only the Commission – is charged with using its expertise to make predictive judgments about the future.

The elephant in the room during this proceeding is the dictum of the U.S. Court of Appeals for the D.C. Circuit contemplating that the lifespan of the exclusive contract ban is near its end: We anticipate that cable’s dominance in the MVPD market will have diminished still more by the time the Commission next reviews the prohibition, and expect that at that time the Commission will weigh heavily Congress’s intention that the exclusive contract prohibition will eventually sunset. Petitioners are correct in pointing out that the MVPD market has changed drastically since 1992. We expect that if the market continues to evolve at such a rapid pace, the Commission will soon be able to conclude that the exclusivity prohibition is no longer necessary to preserve and protect competition and diversity in the distribution of video programming.

However, with due deference to the judiciary’s power to review agency judgments, Free Press respectfully reminds the Commission that what matters is not what the court “anticipates” or “expects,” but what the Commission determines based on its knowledge of the affected industries. It is the decisions of the Commission that a reviewing court examines; and it is the factual judgments of the Commission, not the court, on which the court’s decision will be based.