Federal law tries to have it both ways, allowing the cable companies to own cable channels, but barring them from discriminating against rival channels. Trouble is, this puts the FCC in the position of calling balls and strikes on what constitutes discrimination. And the commission’s decision last year to reverse an arbitrator’s well-reasoned judgment in order to side with Time Warner, has gotta make you wonder whether it is, in fact, possible to have it both ways. Check out this amicus brief in the case, written by one of us (Hahn) along with Robert Litan.






