The Second Circuit has upheld rules that aim to ease the process for vendors of video content to complain to the Federal Communications Commission about bias by Comcast, Time Warner, and other cable giants in favor of their own video content. Time Warner Cable Inc. v. Federal Communications Comm'n, No. 11-4138(L) (2d Cir. Sept. 4, 2013).

The panel cited the fact that Comcast still holds big market shares (60 percent or more) in places like Philadelphia and Chicago and therefore could use its bottleneck status to force non-Comcast video sources to accept worse terms than Comcast provides to its affiliates.

The cable companies griped that the first amendment gave them the right to favor their own content as a matter of free speech. The court held that "intermediate scrutiny" applied to the complaint and that the 2011 FCC rules did a good enough job of trying to serve the congressional goal of preventing unfair use of market power by Comcast, et al. You don't have a free speech right to hurt competitors, the court seemed to say.

The rules the panel upheld, by the way, differ from the ones that govern the now-over fight between Time Warner and CBS over "retransmission consent", which applies only to broadcast programming.