Comcast Cable Communications, LLC v. FCC, et al, U.S. D.C. Cir. (5/28/13)
Communications Law
Tennis Channel, a sports programming network and intervenor in this suit, filed a complaint against Comcast Cable, a multichannel video programming distributor (MVPD), alleging that Comcast violated section 616 of the Communications Act of 1934, 47 U.S.C. 536(a)(3), and the Commission’s regulations by refusing to broadcast Tennis as widely as it did its own affiliated sports programming networks, Golf Channel and Versus. An ALJ ruled against Comcast, ordering that it provide Tennis carriage equal to what it afforded Golf and Versus, and the Commission affirmed. The court concluded that Comcast prevailed with its third set of arguments on appeal, that even under the Commission’s interpretation of section 616, the Commission had failed to identify adequate evidence of unlawful discrimination. The Commission had nothing to refute Comcast’s contention that its rejection of Tennis’s proposal was simply “a straight up financial analysis.” Accordingly, the court granted the petition.
In 1993, Lancaster, a former police officer with a long history of severe mental-health problems, killed his girlfriend. At his jury trial in Michigan state court, Lancaster asserted a defense of diminished capacity. Under then-prevailing Michigan Court of Appeals precedent, the diminished-capacity defense permitted a legally sane defendant to present evidence of mental illness to negate the specific intent required to commit a particular crime. The jury convicted him of first-degree murder. Lancaster later obtained federal habeas relief. By the time of Lancaster’s retrial, the Michigan Supreme Court had rejected the diminished-capacity defense in its 2001 decision, Carpenter. The judge at his second trial applied Carpenter and disallowed renewal of his diminished-capacity defense. Lancaster was again convicted. The Michigan Court of Appeals rejected Lancaster’s argument that retroactive application of Carpenter violated due process. Lancaster reasserted his due process claim in a federal habeas petition. The district court denied the petition, but the Sixth Circuit reversed. A unanimous Supreme Court reversed, holding that Lancaster is not entitled to federal habeas relief. The Michigan Court of Appeals’ rejection of Lancaster’s due process claim does not represent an unreasonable application of Supreme Court precedent, 28 U. S. C.2254(d)(1). In Carpenter, the Michigan Supreme Court rejected a diminished-capacity defense, reasonably finding the defense to have no origin in an on-point statute. The Supreme Court has never found a due process violation where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower court decisions based on the supreme court’s reasonable interpretation of a controlling statute. Fair-minded jurists could conclude that a state supreme court decision of that order is not “unexpected and indefensible by reference to [existing] law.”
Monsanto invented and patented Roundup Ready soybean seeds, which contain a genetic alteration that allows them to survive exposure to the herbicide glyphosate. It sells the seeds subject to a licensing agreement that permits farmers to plant the purchased seed in only one growing season. Growers may consume or sell the resulting crops, but may not save any of the harvested soybeans for replanting. Bowman purchased Roundup Ready soybean seed for his first crop of each growing season. To reduce costs for his riskier late-season planting, Bowman purchased soybeans intended for consumption; planted them; treated the plants with glyphosate, killing all plants without the Roundup Ready trait; harvested the resulting soybeans that contained that trait; and saved some of these harvested seeds to use in his late-season planting the next season. After discovering this practice, Monsanto sued for patent infringement. Bowman raised the defense of patent exhaustion, which gives the purchaser of a patented article, or any subsequent owner, the right to use or resell that article. The district court rejected Bowman’s defense; the Federal Circuit affirmed. In a unanimous decision, the Supreme Court affirmed. Patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without permission. Under the patent exhaustion doctrine, the initial authorized sale terminates all patent rights to the patented item and confers on the purchaser, or any subsequent owner, the right to use or sell the thing, but the doctrine restricts the patentee’s rights only as to the “particular article” sold. It leaves untouched the patentee’s ability to prevent a buyer from making new copies. By planting and harvesting patented seeds, Bowman made additional copies of Monsanto’s patented invention, which falls outside the protections of patent exhaustion. If Bowman were granted an exception, patents on seeds would retain little value.
This year has seen some definitive advances in how certain states address the issue of 
