During oral arguments last Friday, a three-judge panel of the DC Circuit Court of Appeals cast doubt on the reasoning behind the FCC’s decision last year to reinstate a 30% cap on cable system ownership, suggesting that such a cap is no longer necessary in view of recent “huge” increases in video market competition and in the diversity of programming. The case before the court concerns a legal challenge brought by Comcast against a February 2008 FCC order affirming a 30% cap on cable market share that had been remanded by a federal appeals court in 2001. Although then-FCC Chairman Kevin Martin sided with both of the agency’s Democrats against a February 2008 FCC order affirming a 30% cap on cable market share that had been remanded by a federal appeals court in 2001. Although then-FCC Chairman Kevin Martin sided with both of the agency’s Democrats in arguing that the 2008 order contained evidence sought by the court that would justify the cap, the FCC’s two dissenting Republicans charged that the decision flew in the face of data showing increases in MVPD market competition since 2001. Echoing concerns raised by the FCC dissenters, Judge Brett Kavanaugh noted that some of the statistics used in support of last year’s order date from the 1980s, as he questioned: “does it make sense to look at 20-year-old data that doesn’t include [direct broadcast satellite]” operators. Kavanaugh also took issue with FCC contentions that the government’s interest in promoting diversity justifies caps on MVPD ownership, declaring, “there’s been a huge increase in the diversity of programming” in recent years. Although FCC attorney James Carr pointed to an increase in the number of cable networks since the FCC first imposed the cap, Senior Judge A. Raymond Randolph called it “a huge assumption” that the cap was responsible for producing the numbers cited by the FCC. Randolph further suggested that the competitive landscape in the U.S. MPVD market may have changed so much since the adoption of the 1992 Cable Act that the FCC’s statutory authority to impose caps on cable ownership may no longer be constitutional today.