Time Warner Cable Inc. v. FCC ( 2013 )


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  • 11-4138(L)
    Time Warner Cable Inc. v. FCC
    
    
                                    UNITED STATES COURT OF APPEALS
    
                                           FOR THE SECOND CIRCUIT
    
    
                                              August Term, 2012
    
                           (Argued: October 4, 2012    Decided: September 4, 2013)
    
                                     Docket Nos. 11-4138(L), 11-5152(Con)
    
    
     TIME WARNER CABLE INC., NATIONAL CABLE & TELECOMMUNICATIONS ASSOCIATION,
    
                                                                  Petitioners,
                                                   —v.—
    
                FEDERAL COMMUNICATIONS COMMISSION, UNITED STATES OF AMERICA,
    
                                                                  Respondents.
    
    Before:
                                    RAGGI, CHIN and CARNEY, Circuit Judges
    
    
              Petitions for review of a 2011 Order of the Federal Communications Commission
    
    promulgating rules under § 616(a)(3) and (5) of the Communications Act of 1934, as
    
    amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub.
    
    L. No. 102-385, 106 Stat. 1460 (1992) (codified at 47 U.S.C. § 536(a)(3), (5)). Petitioners
    
    contend that the prima facie standard established by the 2011 Order, as well as § 616(a)(3)
    
    and (5) pursuant to which it was promulgated, violate the First Amendment. They further
    
    assert that the 2011 Order’s standstill rule was promulgated in violation of the Administrative
    
                                                      1
    Procedure Act’s notice-and-comment requirements. See 5 U.S.C. § 553(b), (c). We reject
    
    the first argument, but are persuaded by the second.
    
            PETITIONS DENIED IN PART AND GRANTED IN PART, AND FCC ORDER VACATED IN
    PART.
    
    
    
                 FLOYD ABRAMS (Marc Lawrence-Apfelbaum, Jeff Zimmerman, Time Warner
                      Cable Inc., New York, New York; Richard P. Press, Matthew A. Brill,
                      Amanda E. Potter, Matthew T. Murchison, Latham & Watkins LLP,
                      Washington, D.C.; Landis C. Best, Ari Melber, Cahill Gordon &
                      Reindel, New York, New York, on the brief), Cahill Gordon & Reindel,
                      New York, New York, for Petitioner Time Warner Cable Inc.
    
                 MIGUEL A. ESTRADA (Rick Chessen, Neal M. Goldberg, Michael S. Schooler,
                      Diane B. Burstein, National Cable & Telecommunications Association,
                      Washington, D.C.; Cynthia E. Richman, Scott P. Martin, Gibson, Dunn
                      & Crutcher LLP, Washington, D.C.; Howard J. Symons, Tara M.
                      Corvo, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.,
                      Washington, D.C., on the brief), Gibson, Dunn & Crutcher LLP,
                      Washington, D.C., for Petitioner National Cable &
                      Telecommunications Association.
    
                 PETER KARANJIA, Deputy General Counsel (Joseph F. Wayland, Acting
                       Assistant Attorney General, Catherine G. O’Sullivan, Nancy C.
                       Garrison, United States Department of Justice, Washington, D.C.; Sean
                       A. Lev, General Counsel, Jacob M. Lewis, Associate General Counsel,
                       James M. Carr, Counsel, Federal Communications Commission,
                       Washington, D.C., on the brief), Federal Communications Commission,
                       Washington, D.C. for Respondents Federal Communications
                       Commission and United States of America.
    
                 Stephen Díaz Gavin, Andrew M. Friedman, Patton Boggs LLP, Washington,
                       D.C., for Amicus Curiae Bloomberg L.P.
    
                 Erin L. Dozier, Jane E. Mago, Jerianne Timmerman, The National Association
                        of Broadcasters, Washington, D.C., for Amicus Curiae The National
                        Association of Broadcasters.
    
    
                                                2
                  Harold Feld, Senior Vice President, Sherwin Siy, Vice President, Legal
                        Affairs, Public Knowledge, Washington, D.C., for Amicus Curiae
                        Public Knowledge.
    
                  C. William Phillips, Covington & Burling LLP, New York, New York;
                        Stephen A. Weiswasser, Kurt A. Wimmer, Gerard J. Waldron, Neema
                        D. Trivedi, Covington & Burling LLP, Washington, D.C., for Amici
                        Curiae The Tennis Channel, Inc. & NFL Enterprises LLC.
    
    
    REENA RAGGI, Circuit Judge:
    
           Time Warner Cable Inc. (“Time Warner”) and the National Cable &
    
    Telecommunications Association (“NCTA” and, collectively with Time Warner, the “Cable
    
    Companies”) petition for review of an August 1, 2011 order of the Federal Communications
    
    Commission (“FCC” or “Commission”).1 See Revision of the Commission’s Program
    
    Carriage Rules, 26 FCC Rcd. 11494 (2011) (“2011 FCC Order”). The 2011 FCC Order
    
    promulgates rules under § 616(a)(3) and (5) of the Communications Act of 1934
    
    (“Communications Act”), as amended by the Cable Television Consumer Protection and
    
    Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992) (“Cable Act”)
    
    (codified at 47 U.S.C. § 536(a)(3), (5)). Section 616(a)(3) and (5) and that part of the 2011
    
    FCC Order establishing the standard for demonstrating a prima facie violation of these
    
    statutory provisions (collectively, the “program carriage regime”) are intended to curb
    
    
           1
             Although the NCTA’s membership does not consist solely of cable companies, we
    refer to the NCTA and Time Warner collectively as “Cable Companies” throughout the
    opinion for ease of reference. Respondents FCC and the United States have submitted a joint
    brief to the court. Thus, references throughout this opinion to the FCC’s arguments on
    appeal should be understood to incorporate the position of the United States as well.
    
                                                 3
    anticompetitive behavior by limiting the circumstances under which a distributor of video
    
    programming can discriminate against unaffiliated networks that provide such programming.
    
    The Cable Companies contend that, on its face, the program carriage regime violates their
    
    First Amendment right to free speech. See U.S. Const. amend. I. They further argue that the
    
    2011 FCC Order’s standstill rule—which requires a distributor to continue carrying an
    
    unaffiliated network under the terms of its preexisting contract until the network’s complaint
    
    against the distributor under the program carriage regime is resolved—was promulgated in
    
    violation of the notice-and-comment requirements of the Administrative Procedure Act
    
    (“APA”). See 5 U.S.C. § 553(b), (c).
    
           For the reasons set forth in this opinion, we reject the Cable Companies’ First
    
    Amendment challenge to the program carriage regime. At the same time, however, we
    
    conclude that the challenged standstill rule was not promulgated in accordance with the APA.
    
    Accordingly, the Cable Companies’ petitions are denied in part and granted in part, and the
    
    2011 FCC Order’s standstill rule is vacated without prejudice to the FCC’s pursuing
    
    promulgation consistent with the APA.
    
    I.     Background
    
           A.     The Video Programming Industry
    
           To provide context for our discussion of the legal issues raised by the Cable
    
    Companies, we begin with an overview of the video programming industry and its relevant
    
    terminology. As pertinent to this case, the video programming industry includes video
    
    
                                                  4
    programming vendors, multichannel video programming distributors (“MVPDs”), and online
    
    video distributors (“OVDs”). See Annual Assessment of the Status of Competition in the
    
    Market for the Delivery of Video Programming, No. 12-203, 
    2013 WL 3803465
    , ¶¶ 2–6,
    
    9–11 (July 22, 2013) (“2013 FCC Report”); Annual Assessment of the Status of Competition
    
    in the Market for the Delivery of Video Programming, 27 FCC Rcd. 8610, ¶¶ 2–6, 9–11, 18,
    
    42 (2012) (“2012 FCC Report”).2
    
          Video programming vendors are primarily programming networks, such as ESPN,
    
    Bravo, and CNN, which create or acquire video programming, such as television shows and
    
    movies, and which contract with MVPDs and OVDs to distribute that programming to
    
    consumers. See 47 C.F.R. § 76.1300(e) (defining “[v]ideo programming vendor”); 2012
    
    FCC Report ¶¶ 18–19, 44, 238, 244–248, Table B-1. MVPDs and OVDs are services that
    
    transmit video programming to subscribers for viewing on televisions, computers, and other
    
    electronic devices.   See 47 C.F.R. § 76.1300(d) (defining “[m]ultichannel video
    
    programming distributor”); 2012 FCC Report ¶¶ 2 n.6, 9, 18–19, 21, 237–39. MVPDs and
    
    OVDs generally do not alter the programming that they transmit; rather, once an MVPD or
    
    OVD acquires programming from networks, it functions as a “conduit for the speech of
    
    
    
    
          2
            Following the release of the 2011 FCC Order, in July 2012 and July 2013, the FCC
    released its most recent reports on the state of competition in the video programming
    industry. The 2012 FCC Report reviews industry data from 2007–2010, see 2012 FCC
    Report ¶ 1, while the 2013 FCC Report reviews data from 2011–2012, see 2013 FCC Report
    ¶ 1.
    
                                                5
    others, transmitting it on a continuous and unedited basis to [consumers].” Turner Broad.
    
    Sys., Inc. v. FCC, 
    512 U.S. 622
    , 629 (1994) (“Turner I”); see 2012 FCC Report ¶ 238.
    
           MVPDs include (1) cable operators, such as Time Warner and Comcast Corporation
    
    (“Comcast”), which transmit programming over physical cable systems; (2) direct broadcast
    
    satellite (“DBS”) providers, such as DISH Network and DIRECTV, which transmit
    
    programming via direct-to-home satellite; and (3) telephone companies, such as AT&T and
    
    Verizon, which transmit programming via fiber-optic cable. See 2012 FCC Report ¶¶ 18,
    
    30.3 While MVPDs primarily transmit programming to televisions, increasingly, they also
    
    offer access to their programming through the Internet. See id. ¶¶ 6, 21. MVPDs sometimes
    
    acquire ownership interests in the networks from which they obtain video programming, and
    
    vice versa. See id. ¶ 42. Such networks are deemed “affiliated” with MVPDs, whereas
    
    networks without any shared ownership interests are deemed “unaffiliated.” Id. ¶¶ 42–43.
    
    The “geographic footprint[]” of an MVPD varies based on the type and size of the MVPD.
    
    Id. ¶ 24. Cable operators, for instance, operate in “discrete geographic areas defined by the
    
    boundaries of their individual systems,” id., and “[n]o cable operator provides nationwide
    
    coverage or statewide coverage,” 2013 FCC Report ¶ 25. Telephone companies are similarly
    
    limited by their physical systems. See id. ¶ 28. By contrast, DBS providers have “national
    
    
    
    
           3
            As of June 2012, the top five MVPDs in terms of total subscribers were, from largest
    to smallest: Comcast, DIRECTV, DISH Network, Time Warner, and Cox Communications.
    See 2013 FCC Report ¶¶ 25, 27, 70, 97.
    
                                                 6
    footprints,” id. ¶ 23, offering “service to most of the land area and population of the United
    
    States,” id. ¶ 27.
    
           OVDs, like Hulu and Netflix, are relatively new services that transmit video
    
    programming to consumers via broadband Internet for viewing on television and other
    
    electronic devices.4 See 2012 FCC Report ¶¶ 2 n.6, 9, 237–39, 246, 252–53. OVDs may
    
    offer programming for free, by subscription, on a rental basis, or for sale. See id. ¶¶ 10,
    
    245–46, 252–53. “[A]n OVD’s market generally covers the entire national broadband
    
    footprint.” Id. ¶ 243; see 2013 FCC Report ¶ 220.
    
           Two markets in the video programming industry are relevant to this case. The first,
    
    which we will refer to as the “video programming market,” is the market in which
    
    programming networks and other video programming vendors compete with each other to
    
    have MVPDs and OVDs carry their video programming. See 2012 FCC Report ¶¶ 9, 11;
    
    2011 FCC Order ¶ 4 & nn.10–12. The second market, which we will refer to as the “MVPD
    
    market,” consists of MVPDs and, to a lesser extent, OVDs competing to deliver video
    
    programming to consumers. See 2012 FCC Report ¶¶ 3–6, 9, 11; 2011 FCC Order ¶ 4 &
    
    n.13. See generally Cablevision Sys. Corp. v. FCC, 
    597 F.3d 1306
    , 1319 (D.C. Cir. 2010)
    
    (Kavanaugh, J., dissenting) (citing Christopher S. Yoo, Vertical Integration & Media
    
    Regulation in the New Economy, 19 YALE J. ON REG. 171, 220 (2002), and discussing chain
    
    of production in video programming industry).
    
           4
           OVDs do not include MVPDs that offer their subscribers access to their
    programming through the Internet. 2012 FCC Report ¶ 2 n.6.
    
                                                  7
           B.     The Cable Act
    
           In 1992, after three years of hearings, Congress overrode President George H.W.
    
    Bush’s veto and enacted the Cable Act to regulate the video programming industry. At the
    
    time, cable operators held 95% of the MVPD market in the United States.                   See
    
    Implementation of Cable Television Consumer Protection & Competition Act of 1992, 17
    
    FCC Rcd. 12124, ¶ 20 (2002) (“2002 FCC Report”). Nascent MVPD systems, such as DBS
    
    and fiber-optic telephone systems, did not then pose a significant competitive threat to cable
    
    operators, see 2012 FCC Report ¶ 27; S. Rep. No. 102-92, at 8 (1991), reprinted in 1992
    
    U.S.C.C.A.N. 1133, 1140–41, and OVDs did not yet exist, see 2012 FCC Report ¶ 239.
    
    Cable operators also generally did not compete against one another in any given locality,
    
    see 2012 FCC Report ¶¶ 27, 39, due in part to “local franchising requirements and the
    
    extraordinary expense of constructing more than one cable television system to serve a
    
    particular geographic area,” Cable Act § 2(a)(2). Thus, the country was effectively divided
    
    into numerous local cable monopolies, with few consumers having a choice of MVPDs. See
    
    id.; S. Rep. No. 102-92, at 8, reprinted in 1992 U.S.C.C.A.N. at 1141 (“A cable system
    
    serving a local community, with rare exceptions, enjoys a monopoly.”).
    
           In conjunction with their local monopolies, cable operators exercised “bottleneck”
    
    control, a power that allowed them to prevent certain programming networks from reaching
    
    consumers in particular geographic areas. Turner I, 512 U.S. at 656–57. It is the “physical
    
    connection between the [subscriber’s] television set and the cable network” that affords cable
    
    
                                                  8
    operators this power to “silence the voice” of a particular network “with a mere flick of the
    
    switch.” Id. at 656 (observing that “simply by virtue of its ownership of the essential
    
    pathway for cable speech, a cable operator [could] prevent its subscribers from obtaining
    
    access to programming it [chose] to exclude”); see generally 3B P. Areeda & H. Hovenkamp,
    
    Antitrust Law ¶¶ 771a, 772a (3d ed. 2008) (discussing bottleneck control and essential
    
    facilities doctrine in antitrust context).
    
            Concerns about cable operators’ anticompetitive market power informed Congress’s
    
    enactment of the Cable Act. See Turner I, 512 U.S. at 633–34; Cable Act § 2(a) (listing
    
    congressional findings about video programming industry). Among other goals, the Act
    
    sought to promote the availability to the public of diverse views through cable television, to
    
    protect consumer interests where cable operators were not subject to effective competition,
    
    and to ensure that cable operators did not have undue market power vis-à-vis programming
    
    networks and consumers. See Cable Act § 2(b). Toward these ends, the Cable Act imposed
    
    various restrictions on cable operators and other MVPDs and directed the FCC to establish
    
    further regulations. See Turner I, 512 U.S. at 630. The focus of this appeal is certain
    
    statutory restrictions on MVPDs dealings with programming networks and the FCC
    
    regulations promulgated thereunder, namely, the program carriage regime and the standstill
    
    rule.
    
    
    
    
                                                  9
           C.      The Program Carriage Regime and the Standstill Rule
    
                   1.    Section 616(a)(3) and (5)
    
           As amended by the Cable Act, § 616(a) of the Communications Act directs the FCC
    
    to “establish regulations governing program carriage agreements and related practices
    
    between cable operators or other [MVPDs] and video programming vendors.” 47 U.S.C.
    
    § 536(a). Section 616(a)(3) specifies that such regulations shall
    
           contain provisions designed to prevent [an MVPD] from engaging in conduct
           the effect of which is to unreasonably restrain the ability of an unaffiliated
           video programming vendor to compete fairly by discriminating in video
           programming distribution on the basis of affiliation or nonaffiliation of
           vendors in the selection, terms, or conditions for carriage of video
           programming provided by such vendors.
    
    Id. § 536(a)(3). Section 616(a)(5) further instructs that such regulations shall “provide for
    
    appropriate penalties and remedies for violations of this subsection, including carriage.” Id.
    
    § 536(a)(5).
    
           Congress enacted these provisions to prevent cable operators from using their market
    
    power to take unfair advantage of unaffiliated programming networks. See 2012 FCC Report
    
    ¶ 42. As the Senate and House Reports indicate, Congress was concerned that cable
    
    operators were leveraging “their market power derived from their de facto exclusive
    
    franchises and lack of local competition” to require networks to give them “an exclusive right
    
    to carry the programming, a financial interest, or some other added consideration as a
    
    condition of carriage on the cable system.” S. Rep. No. 102-92, at 24, reprinted in 1992
    
    U.S.C.C.A.N. at 1156–57; see H.R. Rep. No. 102-628, at 42–44 (1992); 2012 FCC Report
    
                                                 10
    ¶ 42. The Senate Report notes that such tactics were “not surprising” in light of the lack of
    
    competition in the MVPD market: unaffiliated networks either had to “deal with operators
    
    of such systems on their terms or face the threat of not being carried in that market.” S. Rep.
    
    No. 102-92, at 24, reprinted in 1992 U.S.C.C.A.N. at 1157. The report acknowledged
    
    aspects of the MVPD and video programming markets that could sometimes offset or reduce
    
    these anticompetitive concerns. See id. For example, the extent of cable operators’ market
    
    power varied from locality to locality. See id. Moreover, certain major networks, like CNN
    
    and ESPN, could “fend for themselves,” as cable operators were unlikely not to carry such
    
    popular networks given the operators’ incentive to carry programming that “increase[d]
    
    subscribership and decrease[d] churn.” Id. Nevertheless, Congress remained concerned that
    
    “in certain instances” a cable operator would be able to “abuse its locally-derived market
    
    power to the detriment of programmers.” Id.; see H.R. Rep. No. 102-628, at 43–44.
    
           This concern was exacerbated by pervasive vertical integration in the video
    
    programming industry. “Vertical integration occurs when a firm provides for itself some
    
    input that it might otherwise purchase on the market.” Areeda & Hovenkamp ¶ 755a. “A
    
    vertically integrated cable company is a company that owns both the programming and the
    
    distribution system.” S. Rep. No. 102-92, at 24–25, reprinted in 1992 U.S.C.C.A.N. at
    
    1157–58. In 1992, when the Cable Act was enacted, 39 of the 68 national programming
    
    networks, or approximately 57%, were vertically integrated with cable operators. See H.R.
    
    Rep. No. 102-628, at 41; see also 2012 FCC Report ¶ 42. This vertical integration provided
    
    
                                                  11
    cable operators with the incentive and ability to favor their affiliated networks, for example,
    
    by giving an affiliated network a more desirable channel position than an unaffiliated
    
    network or by refusing to carry an unaffiliated network altogether. See S. Rep. No. 102-92,
    
    at 25, reprinted in 1992 U.S.C.C.A.N. at 1158; H.R. Rep. No. 102-628, at 41. Indeed, the
    
    Senate Report noted hearing testimony that stated as much:
    
           Because of the trend toward vertical integration, cable operators now have a
           clear vested interest in the competitive success of some of the programming
           services seeking access through their conduit. You don’t need a Ph.D. in
           Economics to figure out that the guy who controls a monopoly conduit is in a
           unique position to control the flow of programming traffic to the advantage of
           the program services in which he has an equity investment and/or in which he
           is selling advertising availabilities, and to the disadvantage of those
           services . . . in which he does not have an equity position.
    
    S. Rep. No. 102-92, at 25–26, reprinted in 1992 U.S.C.C.A.N. at 1158–59 (internal quotation
    
    marks omitted); see also Areeda & Hovenkamp ¶ 756b (stating that vertically-integrated
    
    monopolist “at one stage of the production-distribution process may carry with it the power
    
    to affect competition in earlier and later stages”).
    
           On the other hand, Congress recognized that vertical integration could sometimes
    
    promote competition. See S. Rep. No. 102-92, at 26–27, reprinted in 1992 U.S.C.C.A.N. at
    
    1159–60; H.R. Rep. No. 102-628, at 41. The Senate Report cited hearing testimony
    
    recounting how vertical integration had allowed cable operators to “stimulate[] the
    
    development of programming that was necessary to flesh out the promise of cable . . . when
    
    nobody else was really willing to step up and put up the money.” S. Rep. No. 102-92, at 27,
    
    reprinted in 1992 U.S.C.C.A.N. at 1160; see also Areeda & Hovenkamp ¶ 756b (“[V]ertical
    
                                                  12
    integration by a monopolist may or may not have desirable or adverse consequences on
    
    economic performance.”).
    
           Given these mixed views on the competitive impact of vertical integration in the video
    
    programming industry, Congress rejected proposals to ban vertical integration and instead
    
    enacted “legislation bar[ring] cable operators from discriminating against unaffiliated
    
    programmers” to ensure “competitive dealings between programmers and cable operators.”
    
    S. Rep. No. 102-92, at 27, reprinted in 1992 U.S.C.C.A.N. at 1160; see also H.R. Rep. No.
    
    102-628, at 173 (“While vertical integration of cable systems has led to a diversity of
    
    program offerings which had previously been unknown, we cannot countenance
    
    discriminatory practices by cable systems in favor of program suppliers in which the cable
    
    company has an interest.”).
    
                  2.     The 1993 FCC Order
    
           Pursuant to the Cable Act’s mandate, on October 22, 1993, the FCC released an order
    
    establishing a procedural framework for addressing § 616(a)(3) discrimination complaints
    
    by unaffiliated networks against MVPDs. See Implementation of Sections 12 & 19 of the
    
    Cable Television Consumer Protection & Competition Act of 1992, 9 FCC Rcd. 2642 (1993)
    
    (“1993 FCC Order”). In so doing, the FCC sought to establish regulations that balanced the
    
    need to proscribe “behavior prohibited by the specific language of the statute” with the need
    
    to preserve “the ability of affected parties to engage in legitimate, aggressive negotiations.”
    
    Id. ¶ 14. It thus determined that resolution of § 616(a)(3) complaints would be case specific,
    
    
                                                  13
    focusing “on the specific facts pertaining to each negotiation” to determine if a violation of
    
    the program carriage rules had occurred. Id.
    
           Under the 1993 FCC Order’s complaint process, an unaffiliated network, as a first step
    
    to obtaining relief against an MVPD, had to make a prima facie “showing that [the MVPD]
    
    . . . engaged in behavior that is prohibited by” § 616(a)(3). Id. ¶ 29. To carry its prima facie
    
    burden, the unaffiliated network had to, among other things, “identify the relevant
    
    Commission regulation allegedly violated,” “describe with specificity the behavior
    
    constituting the alleged violation,” and provide documentary evidence of the alleged
    
    violation or an affidavit setting forth the basis for its allegations. Id. Defendant MVPDs
    
    were permitted to file an answer supported by documentary evidence or a refuting affidavit,
    
    to which the complainant could then reply. See id. ¶ 30. If, upon FCC review of these
    
    submissions, the agency determined that the complainant had not shown a prima facie
    
    violation, the complaint would be dismissed. See id. ¶ 31. But if a prima facie violation
    
    were shown, the FCC could order discovery, refer the case to an administrative law judge
    
    (“ALJ”) for a hearing, or, if appropriate, grant relief on the basis of the existing record. See
    
    id.
    
           Pursuant to § 616(a)(5), the 1993 FCC Order also established penalties for violations
    
    of § 616(a)(3), which included forfeitures, mandatory carriage, or carriage on terms revised
    
    or specified by the FCC. See id. ¶ 26. The FCC emphasized that appropriate relief would
    
    be decided on a “case-by-case basis.” Id.
    
    
                                                  14
                  3.     The 2007 FCC Notice of Proposed Rule Making
    
           On June 15, 2007, the FCC issued a notice of proposed rule making that solicited
    
    comments on potential changes to the procedures established in the 1993 FCC Order. See
    
    Leased Commercial Access; Development of Competition & Diversity in Video
    
    Programming Distribution & Carriage, 22 FCC Rcd. 11222 (2007) (“2007 NPRM”). Among
    
    other things, the FCC sought comment on the need to clarify the elements of a prima facie
    
    § 616(a)(3) violation, see id. ¶ 14, and to “adopt rules to address the complaint process
    
    itself,” id. ¶ 16. As to the latter point, the FCC requested comments both on whether it
    
    “should adopt additional rules to protect [programming networks] from potential retaliation
    
    if they file a complaint” and whether “the existing penalties for frivolous program carriage
    
    complaints are appropriate or should be modified.” Id. The FCC also solicited comment “on
    
    any other issues that would properly inform [its] program carriage inquiry.” Id. ¶ 18.
    
                  4.     The 2011 FCC Order
    
           Some four years later, on August 1, 2011, the FCC released the 2011 FCC Order here
    
    at issue. In so doing, the FCC noted the small number of § 616(a)(3) complaints filed against
    
    MVPDs pursuant to the 1993 Order. See 2011 FCC Order ¶ 6 n.27 (noting total of 11
    
    program carriage complaints in approximately two decades since 1992 enactment of § 616).
    
    MVPDs submitted that the small number “demonstrate[d] that the current procedures [were]
    
    working and that rule changes [were] not necessary.” Id. ¶ 8. By contrast, programming
    
    networks complained that “inadequate” agency procedures, “not a lack of program carriage
    
    
                                                 15
    claims,” id., “hindered the filing of legitimate complaints,” id. ¶ 2. Networks specifically
    
    cited “uncertainty concerning the evidence a complainant must provide to establish a prima
    
    facie case, unpredictable delays in the Commission’s resolution of complaints, and fear of
    
    retaliation as impeding the filing of legitimate program carriage complaints.” Id. ¶ 8
    
    (footnotes omitted).
    
           The FCC concluded that the record developed in response to the 2007 NPRM showed
    
    that its “current program carriage procedures [were] ineffective and in need of reform.” Id.
    
    ¶ 8. Accordingly, in the 2011 FCC Order, the agency stated that it was taking “initial steps
    
    to improve [its] procedures for addressing program carriage complaints.” Id. ¶ 2. Among
    
    these steps were two rule changes relevant to the petitions for this court’s review:
    
    (a) pronouncement of a new prima facie standard, and (b) creation of a standstill rule.
    
                           a.   Prima Facie Standard
    
           The 2011 FCC Order rejected comments calling for elimination of a prima facie
    
    standard, concluding that such a required showing “is important to dispose promptly of
    
    frivolous complaints and to ensure that only legitimate complaints proceed to further
    
    evidentiary proceedings.” Id. ¶ 10. At the same time, however, the Order strove to “clarify[]
    
    what is required to establish a prima facie case and [to] codify[] these requirements in [the
    
    FCC’s] rules.” Id.
    
           Under the revised standard for a prima facie § 616(a)(3) violation, a complaining
    
    unaffiliated network must show, first, that an MVPD discriminated against it “on the basis
    
    
                                                 16
    of affiliation or non-affiliation” in the “selection, terms, or conditions for carriage” of the
    
    MVPD’s video programming. Id. ¶ 14 (internal quotation marks omitted). The network can
    
    make this showing by reference to either direct or circumstantial evidence. See id. ¶¶ 13–14;
    
    47 C.F.R. § 76.1302(d)(3)(iii)(B). In the latter case, circumstances must establish that (1) the
    
    complaining unaffiliated network “provides video programming that is similarly situated to
    
    video programming provided by” a network affiliated with the defendant MVPD, “based on
    
    a combination of factors, such as genre, ratings, license fee, target audience, target
    
    advertisers, target programming, and other factors,” 2011 FCC Order ¶ 14 (footnotes
    
    omitted); see 47 C.F.R. § 76.1302(d)(3)(iii)(B)(2)(i); and (2) the complained-of MVPD
    
    treated the unaffiliated network differently than the similarly-situated, affiliated network
    
    “with respect to the selection, terms, or conditions for carriage,” 2011 FCC Order ¶ 14;
    
    see 47 C.F.R.§ 76.1302(d)(3)(iii)(B)(2)(ii). This similarly-situated analysis at the prima facie
    
    stage is conducted on a “case-by-case” basis with no single factor being dispositive. 2011
    
    FCC Order ¶ 14 n.57. Rather, “the more factors that are found to be similar, the more likely
    
    the programming in question will be considered similarly situated to the affiliated
    
    programming.” Id. ¶ 14.
    
           To demonstrate a prima facie violation, a complainant must further show that the
    
    discrimination had the effect of “unreasonably restraining” its ability “to compete fairly.”
    
    Id. ¶ 15 (internal quotation marks omitted); see 47 C.F.R. § 76.1302(d)(3)(iii)(A). This
    
    analysis is also case specific, and the 2011 FCC Order noted that, in previous cases, the FCC
    
    
                                                  17
    Media Bureau had made this assessment based on the impact of the charged adverse action
    
    “on the programming vendor’s subscribership, licensee fee revenues, advertising revenues,
    
    ability to compete for advertisers and programming, and ability to realize economies of
    
    scale.” 2011 FCC Order ¶ 15 n.60.
    
           The 2011 FCC Order clarified that the Media Bureau would review only an
    
    unaffiliated network’s complaint in making a prima facie violation determination, see id.
    
    ¶ 17, and that the prima facie burden did not require the complainant to prove a § 616(a)(3)
    
    violation or any elements thereof, but that it did require the complainant to “provide[]
    
    sufficient evidence in its complaint, without the Media Bureau having considered any
    
    evidence to the contrary, to proceed.” Id. ¶ 16. If the complainant carries this prima facie
    
    burden, the Media Bureau will then review the MVPD’s answer and complainant’s reply
    
    thereto to determine whether the merits of the complaint can be resolved on the pleadings,
    
    or whether further proceedings, such as discovery or an adjudicatory hearing before an ALJ,
    
    are warranted. See id. ¶ 17.
    
                         b.     Standstill Rule
    
           In addition to revising the prima facie standard, the 2011 FCC Order created a
    
    standstill rule, which allows the FCC to consider requests for a “temporary standstill of the
    
    price, terms, and other conditions of an existing programming contract by a program carriage
    
    complainant seeking renewal of such a contract.” Id. ¶ 25; see 47 C.F.R. § 76.1302(k). In
    
    adopting this provision, the FCC concluded that, “absent a standstill, an MVPD will have the
    
    
                                                  18
    ability to retaliate against a programming vendor that files a legitimate complaint by ceasing
    
    carriage of the programming vendor’s video programming, thereby harming the
    
    programming vendor as well as viewers who have come to expect to be able to view that
    
    video programming.” 2011 FCC Order ¶ 25. Furthermore, it found that, without a standstill,
    
    “programming vendors may feel compelled to agree to the carriage demands of MVPDs,
    
    even if these demands violate the program carriage rules, in order to maintain carriage of
    
    video programming in which they have made substantial investments.” Id.
    
           To secure a standstill order, a complainant must satisfy the traditional criteria for a
    
    preliminary injunction, demonstrating (1) likely success on the merits of the complaint;
    
    (2) that it will face irreparable harm absent a standstill; (3) no substantial harm to other
    
    interested parties; and (4) the standstill’s furtherance of the public interest. See id. ¶ 27; 47
    
    C.F.R. § 76.1302(k)(1).
    
           In pronouncing the standstill rule, the FCC rejected a general complaint by cable
    
    operators following the 2007 NPRM, i.e., that the agency had failed to provide adequate
    
    notice under the APA of the rule changes that it was considering. See 2011 FCC Order ¶ 36
    
    & n.146. The FCC concluded that the APA’s notice-and-comment requirements did not
    
    apply to the standstill rule because it is a rule of agency procedure, rather than of substance.
    
    See id. ¶ 36 n.149 (stating that standstill rule does “not alter the existence or scope of any
    
    substantive rights, but simply codif[ies] a pre-existing procedure for obtaining equitable
    
    relief to vindicate those rights”). In any event, the FCC concluded that the 2007 NPRM
    
    
                                                   19
    complied with APA requirements because the standstill rule is the “logical outgrowth” of the
    
    2007 NPRM’s solicitation for comments on whether the FCC should “‘adopt additional rules
    
    to protect programmers from potential retaliation if they file a complaint.’” Id. ¶ 36 (quoting
    
    2007 NPRM ¶ 16 and noting that “standstill procedure will help to prevent retaliation while
    
    a program carriage complaint is pending”).
    
           Nevertheless, the 2011 FCC Order sought additional comment on “whether there are
    
    any circumstances in the program carriage context in which the Commission’s authority to
    
    issue temporary standstill orders is statutorily or otherwise limited.” Id. ¶ 60. In particular,
    
    it requested comment on whether § 624(f)(1) of the Communications Act, see 47 U.S.C.
    
    § 544(f)(1) (stating that FCC “may not impose requirements regarding the provision or
    
    content of cable services, except as expressly provided in this subchapter”), would “bar
    
    granting temporary injunctive relief in the program carriage context in some circumstances,”
    
    2011 FCC Order ¶ 26 n.107 (emphasis in original).
    
           Dissenting in part from the 2011 FCC Order, Commissioner Robert McDowell
    
    concluded that the APA’s notice-and-comment requirements did apply to the standstill rule
    
    because that rule “confer[s] substantive rights” and is “outside the scope of Commission
    
    procedure” insofar as it “extends a contractual arrangement and determines the amount of
    
    compensation parties will receive after the program carriage dispute is resolved.” Id. at
    
    11610 (Commissioner McDowell, approving in part and dissenting in part). He further
    
    rejected the majority view that the standstill rule codifies the FCC’s past practice in the
    
    
                                                  20
    program carriage context. See id. Indeed, he questioned FCC authority to issue a standstill
    
    order before finding an MVPD in violation of program carriage rules. See id. In support,
    
    he cited § 616(a)(5) of the Cable Act, see 47 U.S.C. § 536(a)(5), which permits the FCC to
    
    impose penalties and remedies, such as ordering program carriage, only upon a violation, and
    
    § 624(f)(1) of the same Act, see id. § 544(f)(1), which, as just described supra, prohibits the
    
    FCC from imposing requirements regarding the provision or content of cable services beyond
    
    those provided by statute. See 2011 FCC Order at 11610 & n.15. To reinforce his
    
    conclusion, Commissioner McDowell noted that the FCC had expressly solicited comments
    
    on the adoption of a standstill rule when promulgating rules under the program access
    
    provision of the Cable Act, see 47 U.S.C. § 548. See 2011 FCC Order at 11611.
    
           He further dissented from the majority conclusion that the 2007 NPRM satisfied the
    
    APA’s notice-and-comment requirements, explaining that because the “standstill
    
    arrangements were not discussed in the 2007 notice, . . . interested parties were not aware
    
    that comments should [have been] filed on the subject during the notice-and-comment
    
    period.” Id. at 11609. “In fact, the idea of a standstill provision was not raised by any parties
    
    submitting initial comments. Instead, the matter was advanced after the close of the
    
    comment period.” Id.; see id. at 11609 n.9. Moreover, Commissioner McDowell found the
    
    relationship between retaliation and the standstill rule to be “tenuous at best” and, thus, that
    
    the rule could not be deemed a logical outgrowth of the FCC’s notice regarding
    
    anti-retaliation rules. Id. Finally, he stated that the 2011 FCC Order’s adoption of the
    
    
                                                   21
    standstill rule was curious in light of the fact that it simultaneously sought comment on
    
    several key aspects of the rule’s implementation, notably possible statutory limits on the
    
    FCC’s authority to issue a standstill order in the program carriage context. See id. at 11611
    
    & n.19. Commissioner McDowell therefore predicted that the standstill rule was “vulnerable
    
    to a court remand.” Id. at 11609.
    
                  5.     Time Warner’s First Amendment Challenge
    
           In releasing the 2011 FCC Order, the agency rejected Time Warner’s claim, made in
    
    response to the 2007 NPRM, that the program carriage regime violated the First Amendment.
    
    See id. ¶¶ 31–34. Time Warner had argued that, insofar as the program carriage regime
    
    required MVPDs to carry certain unaffiliated networks on the same terms as affiliated
    
    networks, it constituted a content-based infringement on MVPDs’ editorial determinations
    
    of which programming networks to provide to their subscribers. As such, it was subject to
    
    strict scrutiny, which Time Warner maintained it could not withstand because increased
    
    competition in the MVPD market had deprived cable operators of any bottleneck power that
    
    might have justified the regime’s initial creation in 1992. See id. ¶¶ 31, 33; Comments of
    
    Time Warner Cable Inc., MB Docket No. 07-42, at 10–13 (Sept. 11, 2007).
    
           Construing the program carriage regime as content neutral, the FCC applied
    
    intermediate, rather than strict, scrutiny to Time Warner’s First Amendment challenge, and
    
    concluded that, even with the increased competition in the MVPD market, the program
    
    carriage regime continued to serve important government interests in promoting competition
    
    
                                                 22
    and diverse viewpoints. See 2011 FCC Order ¶¶ 32–33. In so concluding, the FCC relied
    
    on the program carriage discrimination provision of the Cable Act that “directed the
    
    Commission to assess on a case-by-case basis the impact of anticompetitive conduct on an
    
    unaffiliated programming vendor’s ability to compete.” Id. ¶ 33. It further noted that the
    
    overall number of affiliated networks had increased significantly following the 2011 merger
    
    of Comcast—the nation’s largest cable operator and MVPD—and NBC Universal, the
    
    nation’s fourth largest owner of national programming networks. See id.; Applications of
    
    Comcast Corp., General Electric Co. & NBC Universal, Inc. For Consent to Assign Licenses
    
    & Transfer Control of Licensees, 26 FCC Rcd. 4238, ¶ 116 (2011) (“2011 Comcast/NBCU
    
    Order”). Although the FCC had approved this merger, see 2011 Comcast/NBCU Order, the
    
    agency maintained that it “highlight[ed] the continued need for an effective program carriage
    
    complaint regime,” 2011 FCC Order ¶ 33.5
    
    
           5
            As a result of its merger with NBC Universal, and following its sale of 17 networks
    to non-MVPDs, as of June 2012, Comcast had an ownership interest in 50 national networks,
    as well as numerous regional news and sports networks. See 2013 FCC Report ¶ 39, Table
    B-1, Table C-1; 2012 FCC Report ¶ 45.
    
            In approving the merger, the FCC expressed concern that Comcast’s incentive and
    ability to harm unaffiliated networks would thereby increase:
    
           Comcast’s large subscriber base potentially allows it to limit access to
           customers for any network it wishes to disadvantage by either denying carriage
           or, with a similar but lesser competitive effect, placing the network in a less
           penetrated tier or on a less advantageous channel number (making it more
           difficult for subscribers to find the programming). In doing so, Comcast can
           reduce viewership of competing video programming networks, which in turn
           could render these networks less attractive to advertisers, thus reducing their
    
                                                 23
           The FCC further concluded that case-by-case analysis of unaffiliated networks’
    
    complaints under the program carriage regime was narrowly tailored to promote diversity and
    
    competition in the video programming industry because it restricted an MVPD’s speech only
    
    upon proof that the MVPD had discriminated on the basis of network affiliation and that such
    
    discrimination unreasonably restrained a network’s ability to compete fairly. See id. ¶ 34.
    
           D.     The Current State of the Video Programming Industry
    
           As the 2011 FCC Order acknowledges, the video programming industry has changed
    
    significantly since enactment of the Cable Act in 1992. While cable operators still control
    
    a majority of the United States MVPD market, their share of that market has dropped from
    
    95% in 1992, see 2002 FCC Report ¶ 20, to 55.7% as of June 2012, see 2013 FCC Report
    
    ¶ 3. This decline is attributable to the concomitant rise of DBS providers, which now
    
    command 33.6% of the MVPD market, and telephone companies, which now control an
    
    estimated 9.1% of that market. See id. ¶ 3 & n.6. Indeed, at the end of June 2012, two DBS
    
    providers, DIRECTV and DISH Network, were the second and third largest MVPDs in the
    
    United States, respectively, in terms of total subscribers. See id. ¶ 27. Given the national
    
    
           revenues and profits. As a result, these unaffiliated networks may compete
           less aggressively with NBCU networks, allowing the latter to obtain
           or . . . maintain market power with respect to advertisers seeking access to
           their viewers.
    
    2011 Comcast/NBCU Order ¶ 116. These concerns led the FCC to condition the merger on
    Comcast’s agreement to certain restrictions aimed at reducing affiliation-based
    discrimination, in addition to those imposed by the program carriage regime. See id.
    ¶¶ 121–24.
    
                                                24
    footprint of DBS providers, in most geographic areas served by a cable operator, consumers
    
    now have a choice among three competing MVPDs, specifically, the local cable operator and
    
    two DBS providers. Meanwhile, a significant number of geographic areas have access to
    
    at least four MVPDs: the local cable operator, two DBS providers, and a telephone
    
    company. See id. ¶ 36 (stating that, in 2011, of 132.5 million homes in the United States,
    
    approximately 130.7 million had access to at least three MVPDs and approximately 46.8
    
    million had access to at least four).
    
           Consumers also increasingly have been watching video programming through OVDs.
    
    See 2012 FCC Report ¶ 140; 2011 Comcast/NBCU Order ¶¶ 63–66, 79. In June 2012,
    
    approximately 180 million Internet users in the United States watched online video content,
    
    see 2013 FCC Report ¶ 293, and “[s]ome reports indicate that OVD users are beginning to
    
    ‘cut the cord’ and drop their MVPD service in favor of OVD or a combination of OVD and
    
    over-the-air television,” 2012 FCC Report ¶ 341. Nevertheless, because “[t]raditional
    
    television is the dominant device for video consumption,” id. ¶ 338, OVDs are not currently
    
    “considered a fundamental threat to the MVPD business model,” 2013 FCC Report ¶ 132.
    
           While the entry of DBS providers, telephone companies, and OVDs into the MVPD
    
    market has significantly increased competition, see 2012 FCC Report ¶ 138 (“[C]ompetition
    
    continues to reduce cable’s share of the U.S. video market and . . . cable MVPDs are
    
    expected to continue losing basic video subscribers to competing MVPDs.”), cable operators
    
    continue to maintain significant MVPD market shares in many localities. For example, as
    
    
                                                25
    of mid-2010, Comcast maintained at least a 40% share in 13 of the 20 largest MVPD markets
    
    in the United States, ranging from as low as 43% in Houston to as high as 62% in Chicago
    
    and 67% in Philadelphia. See 2011 Comcast/NBCU Order ¶ 116 & n.275. Moreover, cable
    
    operators’ market strength continues to be consolidated in particular geographic areas.
    
    Comcast’s subscribers, for instance, are “clustered in the mid-Atlantic, Chicago, Denver, and
    
    Northern California,” while Time Warner’s subscribers are “clustered in New York State
    
    (including New York City), the Carolinas, Ohio, Southern California (including Los
    
    Angeles), and Texas.” 2013 FCC Report ¶¶ 96–97.
    
           Since 1992, there also has been a decline in vertical integration among cable operators
    
    and programming networks in the video programming industry. Compare H.R. Rep. No.
    
    102-628, at 41 (stating that 57% of national networks were affiliated with cable operators in
    
    1992), with 2012 FCC Report ¶¶ 43–44 & n.96 (indicating that, as of early 2012, 127 of
    
    estimated 800 national networks, or approximately 16%, were affiliated with top five cable
    
    operators), and 2013 FCC Report ¶ 39 (stating that number of national networks affiliated
    
    with top five cable operators fell to 99 in early 2013); see id. Table B-1 (listing national
    
    programming networks affiliated with top five cable operators). At the same time, however,
    
    Time Warner maintains an ownership interest in four national networks, including MLB
    
    Network; Cox Communications has an interest in six national networks, including MLB
    
    Network and the Travel Channel; Cablevision has an ownership in ten, including AMC and
    
    IFC; and Bright House Networks has an interest in 29, including Animal Planet and
    
    
                                                 26
    Discovery Channel. See id. ¶ 39, Table B-1. And, as we have already discussed, Comcast’s
    
    merger with NBC Universal, see supra at [24] n.5, resulted in Comcast’s having ownership
    
    interests in 50 national networks, including Bravo, E! Entertainment TV, CNBC, MSNBC,
    
    USA Network, and The Weather Channel, see 2013 FCC Report ¶ 39, Table B-1. Aside
    
    from national networks, each of these cable operators also has an ownership interest in
    
    numerous regional news or sports networks. See id. Table C-1.
    
           Like Congress in 1992, the FCC continues to view the effects of vertical integration
    
    on the video programming industry as mixed. While potential benefits include “efficiencies
    
    in the production, distribution, and marketing of video programming, as well as the incentive
    
    to expand channel capacity and create new programming by lowering the risks associated
    
    with program production ventures,” id. ¶ 38 n.87, possible harms include “unfair methods
    
    of competition, discriminatory conduct, and exclusive contracts that are the result of coercive
    
    activity,” id. ¶ 38 n.88.
    
           E.      The Instant Appeal
    
           Upon issuance of the 2011 FCC Order, the Cable Companies timely filed petitions for
    
    judicial review.6 See 28 U.S.C. § 2344. They argue that the program carriage regime
    
    violates the First Amendment in light of the current state of the MVPD market. They also
    
    
    
           6
             On November 7, 2011, the NCTA filed a petition for review of the 2011 FCC Order
    in the D.C. Circuit. On November 22, 2011, the D.C. Circuit transferred that petition to this
    court pursuant to 28 U.S.C. § 2112(a)(5), where it was consolidated with the petition for
    review of the 2011 FCC Order filed by Time Warner on October 11, 2011.
    
                                                  27
    claim that the FCC failed to provide adequate notice of and opportunity to comment on the
    
    standstill rule under the APA. We address each of these arguments in turn.
    
    II.    Discussion
    
           A.     First Amendment Challenge
    
           The First Amendment states that “Congress shall make no law . . . abridging the
    
    freedom of speech.” U.S. Const. amend. I. There is no question that cable operators and
    
    other MVPDs “engage in and transmit speech” protected by the First Amendment. Turner I,
    
    512 U.S. at 636. “[B]y exercising editorial discretion over which stations or programs to
    
    include in [their] repertoire,” MVPDs “communicate messages on a wide variety of topics
    
    and in a wide variety of formats.” Id. (internal quotation marks omitted). Nor is there any
    
    dispute that the program carriage regime regulates MVPDs’ protected speech by restraining
    
    their editorial discretion over which programming networks to carry and on what terms. See
    
    Turner Broad. Sys., Inc. v. FCC, 
    520 U.S. 180
    , 214 (1997) (“Turner II”); Turner I, 512 U.S.
    
    at 637; accord Cablevision Sys. Corp. v. FCC, 
    570 F.3d 83
    , 96–97 (2d Cir. 2009). The
    
    question here, then, is whether such regulation is justified by a countervailing government
    
    interest under the appropriate level of First Amendment scrutiny.
    
           In their petitions for review, the Cable Companies contend that the FCC erred when,
    
    in issuing the 2011 FCC Order, it subjected the program carriage regime to intermediate
    
    scrutiny. The Cable Companies submit that the regime’s restrictions are content and speaker
    
    
    
    
                                                28
    based, thus requiring strict scrutiny. In any event, the Cable Companies argue that the
    
    program carriage regime cannot survive either strict or intermediate scrutiny.
    
           On de novo review of this constitutional challenge to the 2011 FCC Order, see
    
    Cablevision Sys. Corp. v. FCC, 570 F.3d at 91, we conclude that intermediate scrutiny is the
    
    appropriate level of review and that the FCC program carriage regime satisfies that standard.
    
    While rapidly increasing competition in the video programming industry may undermine that
    
    conclusion in the not-too-distant future, that time has not yet come. We thus deny the Cable
    
    Companies’ petitions insofar as they challenge the program carriage regime under the First
    
    Amendment.
    
                  1.     The Appropriate Level of Scrutiny
    
           “At the heart of the First Amendment lies the principle that each person should decide
    
    for himself or herself the ideas and beliefs deserving of expression, consideration, and
    
    adherence.” Turner I, 512 U.S. at 641. The First Amendment thus stands against
    
    government “attempts to disfavor certain subjects or viewpoints.” Citizens United v. FEC,
    
    
    558 U.S. 310
    , 340 (2010); see Turner I, 512 U.S. at 641 (“Government action that stifles
    
    speech on account of its message, or that requires the utterance of a particular message
    
    favored by the Government, contravenes this essential right.”). “Prohibited, too, are
    
    restrictions distinguishing among different speakers, allowing speech by some but not
    
    others.” Citizens United v. FEC, 558 U.S. at 340; see First Nat’l Bank of Boston v. Bellotti,
    
    
    435 U.S. 765
    , 784–85 (1978). A content- or speaker-based restriction on protected speech
    
    
                                                 29
    is subject to strict scrutiny and will be tolerated only upon a showing that it is narrowly
    
    tailored to a compelling government interest. See Turner I, 512 U.S. at 642, 653, 658. On
    
    the other hand, a regulation of protected speech that is content neutral and that does not
    
    disfavor certain speakers is reviewed under the less-stringent intermediate level of scrutiny.
    
    See id. at 642, 645, 661–62. Courts have consistently reviewed challenges to the Cable Act
    
    and regulations promulgated pursuant thereto under intermediate scrutiny. See, e.g.,
    
    Turner II, 520 U.S. at 213; Turner I, 512 U.S. at 661–62; Cablevision Sys. Corp. v. FCC, 
    649 F.3d 695
    , 711 (D.C. Cir. 2011); Cablevision Sys. Corp v. FCC, 570 F.3d at 97; Time Warner
    
    Entm’t Co. v. FCC, 
    240 F.3d 1126
    , 1130 (D.C. Cir. 2001); Time Warner Entm’t Co. v.
    
    United States, 
    211 F.3d 1313
    , 1318 (D.C. Cir. 2000); Time Warner Entm’t Co. v. FCC, 
    93 F.3d 957
    , 969 (D.C. Cir. 1996). Because the program carriage regime is content and speaker
    
    neutral, it warrants no different treatment.
    
                          a.     Content Neutrality
    
           “Deciding whether a particular regulation is content based or content neutral is not
    
    always a simple task.” Turner I, 512 U.S. at 642. “The principal inquiry . . . is whether the
    
    government has adopted a regulation of speech because of agreement or disagreement with
    
    the message it conveys.” Id. (alterations and internal quotation marks omitted). In making
    
    this determination, “we look to the purpose behind the regulation.” Bartnicki v. Vopper, 
    532 U.S. 514
    , 526 (2001). “[T]ypically, government regulation of expressive activity is content
    
    neutral so long as it is justified without reference to the content of the regulated speech.” Id.
    
    
                                                   30
    (emphasis in original; alteration and internal quotation marks omitted). While “[t]he purpose,
    
    or justification, of a regulation will often be evident on its face,” Turner I, 512 U.S. at 642,
    
    “even a regulation neutral on its face may be content based if its manifest purpose is to
    
    regulate speech because of the message it conveys,” id. at 645; see Ward v. Rock Against
    
    Racism, 
    491 U.S. 781
    , 791 (1989) (stating that government’s purpose, not regulation’s text,
    
    is “controlling consideration” in determining content neutrality).
    
           Applying these principles here, we conclude that § 616(a)(3) and (5) of the Cable Act,
    
    by its terms, neither favors nor disfavors any particular message or view and, indeed, makes
    
    no reference to content. See 47 U.S.C. § 536(a)(3), (5). To invoke the protections of that
    
    statute, an unaffiliated network must establish that a cable operator or other MVPD
    
    (1) discriminated against it on the basis of affiliation, or more precisely its lack of affiliation
    
    with the MVPD, and (2) thereby unreasonably restrained its ability to compete fairly. See
    
    id. § 536(a)(3). The statute thus prohibits only discrimination on the basis of affiliation. It
    
    confers no protections based on the content of an unaffiliated network’s programming.
    
    Indeed, as the FCC acknowledged during oral argument, an MVPD may decline to carry an
    
    unaffiliated network, whatever the content of its programming, because it opposes the views
    
    expressed by the network or for a legitimate business purpose. See Comcast Cable
    
    Commc’ns, LLC v. FCC, 
    717 F.3d 982
    , 985 (D.C. Cir. 2013) (“There is also no dispute that
    
    the statute prohibits only discrimination based on affiliation. Thus, if the MVPD treats
    
    vendors differently based on a reasonable business purpose . . . , there is no violation.”
    
    
                                                    31
    (emphasis in original)); TCR Sports Broad. Holding, LLP v. FCC, 
    679 F.3d 269
    , 272, 278
    
    (4th Cir. 2012) (affirming FCC order concluding that Time Warner did not violate program
    
    carriage rules by denying unaffiliated network carriage on same tier as affiliated network
    
    based on legitimate business reasons); 2011 FCC Order ¶ 17 (stating that MVPD may make
    
    adverse carriage decision for “legitimate and non-discriminatory business reasons”). Of
    
    course, an adverse carriage decision based on the views expressed by an unaffiliated network
    
    or a legitimate business reason is permissible only insofar as it is not a pretext for
    
    affiliation-based discrimination. See Comcast Cable Commc’ns, LLC v. FCC, 717 F.3d at
    
    985. But absent pretext, the statute affords no protection to any specific content and, thus,
    
    is content neutral on its face. See Time Warner Entm’t Co. v. FCC, 93 F.3d at 969
    
    (concluding that leased access provisions of Cable Act are content neutral because networks’
    
    ability to invoke those provisions “depends not on the content of their speech, but on their
    
    lack of affiliation with the operator, a distinguishing characteristic stemming from
    
    considerations relating to the structure of cable television”).7
    
           Moreover, the Cable Companies do not—and, in light of the statute’s legislative
    
    history, cannot—claim that the purpose of § 616(a)(3) and (5) is to suppress any particular
    
    
    
           7
             The Cable Companies’ reliance on Miami Herald Publishing Co. v. Tornillo, 
    418 U.S. 241
     (1974), is misplaced. Unlike the right-of-reply rules struck down in that case, the
    program carriage regime is “not activated by any particular message spoken by [MVPDs] and
    thus exact[s] no content-based penalty,” Turner I, 512 U.S. at 655, and it does not mandate
    that MVPDs support views that they oppose, see Miami Herald Publ’g Co. v. Tornillo, 418
    U.S. at 256–57.
    
                                                  32
    message or idea. See supra at [8–13]. Congress’s concern in enacting the statute “was not
    
    with what a cable operator might say,” but with the possibility that, as a result of its
    
    bottleneck power and vertical integration with affiliated networks, “it might not let others say
    
    anything at all in the principal medium for reaching much of the public.” Time Warner
    
    Entm’t Co. v. United States, 211 F.3d at 1317–18. Congress enacted § 616(a)(3) and (5) to
    
    minimize this threat, not to suppress any particular message or viewpoint. Such a purpose
    
    is not content based. See Comcast Cable Commc’ns, LLC v. FCC, 717 F.3d at 993
    
    (Kavanaugh, J., concurring) (“[U]nder the Supreme Court’s precedents, Section 616’s impact
    
    on a cable operator’s editorial control is content-neutral . . . .”).
    
           We reach the same conclusion with respect to the 2011 FCC Order’s prima facie
    
    standard. Under that standard, an unaffiliated network may show affiliation-based
    
    discrimination through (1) direct evidence or (2) circumstantial evidence that an MVPD
    
    treated it differently than a “similarly situated” affiliated network.              47 C.F.R.
    
    § 76.1302(d)(3)(iii)(B). In determining whether two networks are similarly situated, the FCC
    
    acknowledges that it examines the content of the networks’ programming. See id. (stating
    
    that FCC considers, among other factors, “genre” and “target programming”). In light of this
    
    examination, the prima facie standard “‘might in a formal sense be described as
    
    content-based,’” but not as that term has been employed by the Supreme Court. Cablevision
    
    Sys. Corp. v. FCC, 649 F.3d at 717 (quoting BellSouth Corp. v. FCC, 
    144 F.3d 58
    , 69 (D.C.
    
    Cir. 1998)). Not only is there “absolutely no evidence” that “the Commission issued its
    
    
                                                    33
    [prima facie standard] to disfavor certain messages or ideas,” but also the Cable Companies
    
    point to no specific content that the standard disfavors. Id.
    
           That conspicuous omission from their argument is explained by a simple fact: the
    
    prima facie standard, like § 616(a)(3) under which it was promulgated, treats all content
    
    equally. Depending on the circumstances of a given case, any content may weigh in favor
    
    of or against a finding that an unaffiliated network is similarly situated to an affiliated
    
    network. But the standard does not itself favor or disfavor particular content. To illustrate,
    
    assume that an unaffiliated network devoted to sports files a § 616(a)(3) complaint against
    
    a cable operator. If the cable operator is affiliated with a sports network, the unaffiliated
    
    network’s sports content will weigh in favor of a finding that it is similarly situated.
    
    Meanwhile, if the cable operator is not affiliated with a sports network, the unaffiliated
    
    network is less likely to be found similarly situated. In either instance, though, it is the cable
    
    operator’s own content choice, not the government’s, that determines whether the unaffiliated
    
    network’s sports content is favored.
    
           Thus, the prima facie standard may favor certain content in one case while disfavoring
    
    the same content in another case. But neither in its adoption nor in its operation does the
    
    standard reflect government “agreement or disagreement” with any particular ideas or
    
    viewpoints. Turner I, 512 U.S. at 642 (alteration and internal quotation marks omitted); cf.
    
    Burson v. Freeman, 
    504 U.S. 191
    , 197–98 (1992) (holding statute content based where it
    
    prohibited political speech near polling places); Boos v. Barry, 
    485 U.S. 312
    , 318–19 (1988)
    
    
                                                   34
    (plurality opinion) (holding ordinance content based because it prohibited picketing critical
    
    of foreign government in front of country’s embassy). Rather, the standard simply employs
    
    a hallmark of discrimination law, the comparison of similarly-situated parties, cf. Ruiz v.
    
    County of Rockland, 
    609 F.3d 486
    , 493–94 (2d Cir. 2010), as a vehicle for determining
    
    whether an MVPD is discriminating against unaffiliated networks in a way that impedes fair
    
    competition. Precisely because it is the MVPD’s own affiliations that in each case provide
    
    the benchmark for the similarity comparison, we conclude that the prima facie standard, like
    
    the statutory provisions that inform it, is justified without reference to content. Its purpose
    
    is to prevent an MVPD who is affiliated with programming networks from discriminating
    
    against unaffiliated networks. In short, its purpose is competition based, not content based.
    
           In urging otherwise, the Cable Companies submit that the FCC’s mere examination
    
    of content renders the prima facie standard content based. Our case law is to the contrary.
    
    We have held that a regulation requiring governmental examination of content is content
    
    neutral as long as the regulation’s purpose is not to disfavor any particular messages or ideas.
    
    See Cablevision Sys. Corp. v. FCC, 570 F.3d at 97 (holding FCC’s market-modification
    
    order content neutral, despite its consideration of “amount of local programming,” where
    
    Cablevision had “not alleged, much less proven” order “was based on some illicit
    
    content-based motive”); Hobbs v. County of Westchester, 
    397 F.3d 133
    , 152–53 (2d Cir.
    
    2005) (concluding permit regulation content neutral, although “content of the applicant’s
    
    proposed presentation [was] examined,” because specific content was irrelevant to
    
    
                                                  35
    governmental goal of protecting children); see also Cablevision Sys. Corp. v. FCC, 649 F.3d
    
    at 717–18 (holding regulations content neutral, even though “triggered by whether the
    
    programming at issue involve[d] sports,” because no evidence FCC sought to disfavor any
    
    particular message); BellSouth Corp. v. FCC, 144 F.3d at 69 (holding statute “expressly
    
    formulated in terms of content” to be content neutral because “underlying purpose” was not
    
    to “favor or disfavor particular viewpoints”).
    
           The cases relied on by the Cable Companies do not demonstrate otherwise. They
    
    recognize laws or regulations as content based when content is examined as part of a
    
    governmental effort to suppress a certain message. See FCC v. League of Women Voters,
    
    
    468 U.S. 364
    , 383 (1984) (holding statute requiring examination of content to be content
    
    based in that it disfavored editorial speech); Carey v. Brown, 
    447 U.S. 455
    , 462 (1980)
    
    (concluding that statute prohibiting non-labor picketing and requiring examination of content
    
    was content based); see also Fox Television Stations, Inc. v. FCC, 
    613 F.3d 317
    , 333 (2d Cir.
    
    2010) (expressing concern that vague standard would permit FCC to engage in “subjective,
    
    content-based decision-making”), vacated and remanded on other grounds by 
    132 S. Ct. 2307
    
    (2012).
    
           Where, as here, the government examines content to determine whether a regulation
    
    applies, with no indication that the regulation favors or disfavors any particular content, the
    
    concerns that compel strict scrutiny of content-based laws are not present. Content-based
    
    regulations are highly suspect because the government can use such regulations to drive
    
    
                                                  36
    disfavored ideas or views from the marketplace. See Hobbs v. County of Westchester, 397
    
    F.3d at148 (citing Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 
    502 U.S. 105
    , 116 (1991)). “Laws of this sort pose the inherent risk that the Government seeks
    
    not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information
    
    or manipulate the public debate through coercion rather than persuasion.” Turner I, 512 U.S.
    
    at 641. By contrast, a regulation that assesses content without expressing a content
    
    preference poses “a less substantial risk of excising certain ideas or viewpoints from the
    
    public dialogue.” Id. at 642. The program carriage regime expresses no government content
    
    preference for particular ideas or viewpoints.         It simply prohibits MVPDs from
    
    discriminating against unaffiliated networks similarly situated to the MVPDs’ affiliated
    
    networks. As such, the regime is properly considered content neutral.
    
                         b.     Speaker Neutrality
    
           “[S]peaker-based laws demand strict scrutiny when they reflect the Government’s
    
    preference for the substance of what the favored speakers have to say (or aversion to what
    
    the disfavored speakers have to say).” Turner I, 512 U.S. at 658. But “[s]o long as they are
    
    not a subtle means of exercising a content preference, speaker distinctions . . . are not
    
    presumed invalid under the First Amendment.” Id. at 645.
    
           Here, the program carriage regime reflected in § 616(a)(3) and (5) of the Cable Act
    
    and the FCC’s prima facie standard does distinguish among speakers. Unaffiliated networks
    
    are favored because the regime affords protections to them that are not afforded to affiliated
    
    
                                                 37
    networks, i.e., it prohibits affiliation-based discrimination that unreasonably restrains
    
    unaffiliated networks’ ability to compete fairly. Meanwhile, cable operators and other
    
    MVPDs are burdened insofar as the regime requires them to carry unaffiliated networks that
    
    they might not otherwise carry or on terms that they might not otherwise offer. Their
    
    affiliates, too, are burdened by the resulting increased competition. To the extent the
    
    program carriage regime might thus be understood to favor certain speakers over others, the
    
    pertinent question for determining the appropriate level of scrutiny is whether that preference
    
    is “based on the content of programming each group offers.” Id. at 658–59. The answer, as
    
    we have just explained, see supra at [31–38], is no.
    
           In asserting that strict scrutiny is warranted here, the Cable Companies contend that
    
    all speaker-based regulations, regardless of whether they are grounded in a content
    
    preference, are presumptively invalid. The Supreme Court rejected this argument in
    
    Turner I. See 512 U.S. at 657 (“To the extent appellants’ argument rests on the view that all
    
    regulations distinguishing between speakers warrant strict scrutiny, it is mistaken.” (citation
    
    omitted)). Indeed, in that case, the Court subjected a speaker-based regulation under the
    
    Cable Act to intermediate scrutiny precisely because it did not reflect a content preference.
    
    See id. at 658–59, 662.
    
           The Cable Companies submit that, subsequent to Turner I, the Supreme Court
    
    reviewed a speaker-based law under strict scrutiny in Citizens United, after stating that,
    
    “[q]uite apart from the purpose or effect of regulating content,” the government “may commit
    
    
                                                  38
    a constitutional wrong when by law it identifies certain preferred speakers.” Citizens United
    
    v. FEC, 558 U.S. at 340. Citizens United, however, reached that conclusion in the particular
    
    context of political speech. See id. at 341 (“We find no basis for the proposition that, in the
    
    context of political speech, the Government may impose restrictions on certain disfavored
    
    speakers.” (emphasis added)). In that area, the Court observed that the “First Amendment
    
    has its fullest and most urgent application.” Id. at 339 (internal quotation marks omitted);
    
    see also Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 
    131 S. Ct. 2806
    , 2821,
    
    2824 (2011) (subjecting speaker-based law that regulated political speech to strict scrutiny).
    
    In the absence of clearer direction from the Supreme Court, we will not ourselves assume
    
    that Citizens United implicitly reversed Turner I to compel strict scrutiny of all speaker-based
    
    preferences, even outside the political-speech context. See United States v. Gomez, 
    580 F.3d 94
    , 104 (2d Cir. 2009) (“‘If a precedent of th[e] [Supreme] Court has direct application in a
    
    case, yet appears to rest on reasons rejected in some other line of decisions, the Court of
    
    Appeals should follow the case which directly controls, leaving to th[e] Court the prerogative
    
    of overruling its own decisions.’” (quoting Agostini v. Felton, 
    521 U.S. 203
    , 237 (1997))).
    
    
    
           Accordingly, because the program carriage regime is neither content based nor
    
    impermissibly speaker based, we subject it to intermediate scrutiny.
    
    
    
    
                                                  39
                  2.     Intermediate Scrutiny
    
           “[T]he intermediate level of scrutiny [is] applicable to content-neutral restrictions that
    
    impose an incidental burden on speech.” Turner I, 512 U.S. at 662. Such a restriction will
    
    be sustained under this standard if it (1) “advances important governmental interests
    
    unrelated to the suppression of free speech” and (2) “does not burden substantially more
    
    speech than necessary to further those interests.” Turner II, 520 U.S. at 189 (citing United
    
    States v. O’Brien, 
    391 U.S. 367
    , 377 (1968)); accord Cablevision Sys. Corp. v. FCC, 570
    
    F.3d at 97. The program carriage regime satisfies these two requirements.
    
                         a.      Important Government Interests
    
           The FCC submits that the program carriage regime serves two important government
    
    interests by promoting (1) fair competition and (2) a diversity of information sources in the
    
    video programming market. The Supreme Court has already recognized that such interests,
    
    “viewed in the abstract,” are important and distinct from the suppression of free expression
    
    or the content of any speaker’s message. Turner I, 520 U.S. at 662–63. The government’s
    
    “interest in eliminating restraints on fair competition is always substantial, even when the
    
    individuals or entities subject to particular regulations are engaged in expressive activity
    
    protected by the First Amendment.” Id. at 664. “Likewise, assuring that the public has
    
    access to a multiplicity of information sources is a governmental purpose of the highest
    
    order, for it promotes values central to the First Amendment.” Id. at 663 (observing that “it
    
    has long been a basic tenet of national communications policy that the widest possible
    
    
                                                  40
    dissemination of information from diverse and antagonistic sources is essential to the welfare
    
    of the public” (internal quotation marks omitted)).
    
           “Of course, just because the government’s ‘asserted interests are important in the
    
    abstract does not mean’” that a challenged program “‘will in fact advance those interests.’”
    
    Cablevision Sys. Corp. v. FCC, 649 F.3d at 711 (quoting Turner I, 512 U.S. at 664
    
    (plurality)). When, as here, “‘the government defends a regulation on speech as a means to
    
    redress past harms or prevent anticipated harms, it must demonstrate that the recited harms
    
    are real, not merely conjectural, and that the regulation will in fact alleviate these harms in
    
    a direct and material way.’” Id. (alterations omitted) (quoting Turner I, 512 U.S. at 664
    
    (plurality)). Thus, the FCC’s determination that the program carriage regime protects against
    
    unfair competition and promotes diverse video programming sources must be based on
    
    “‘reasonable inferences’” drawn from “‘substantial evidence.’” Cablevision Sys. Corp. v.
    
    FCC, 597 F.3d at 1311 (quoting Turner I, 512 U.S. at 666 (plurality)); see Time Warner
    
    Entm’t Co. v. FCC, 240 F.3d at 1133. This does not demand “‘[c]omplete factual support
    
    in the record for the FCC’s judgment or prediction.’” Turner II, 520 U.S. at 196 (alteration
    
    omitted) (quoting FCC v. Nat’l Citizens Comm. for Broad., 
    436 U.S. 775
    , 814 (1978)). “‘[A]
    
    forecast of the direction in which future public interest lies necessarily involves deductions
    
    based on the expert knowledge of the agency.’” Id. (quoting FCC v. Nat’l Citizens Comm.
    
    for Broad., 436 U.S. at 814) (internal quotation marks omitted); see Time Warner Entm’t Co.
    
    v. FCC, 240 F.3d at 1133 (“Substantial evidence does not require a complete factual
    
    
                                                  41
    record—we must give appropriate deference to predictive judgments that necessarily involve
    
    the expertise and experience of the agency.”).
    
           Applying these principles here, we begin by noting that the program carriage regime
    
    calls for a “case-by-case” assessment of the anticompetitive effect of an MVPD’s purported
    
    discrimination against an unaffiliated network. 2011 FCC Order ¶ 33. To justify such a
    
    regime, the FCC “has no obligation to establish that vertically integrated cable companies
    
    retain a stranglehold on competition nationally.” Cablevision Sys. Corp. v. FCC, 649 F.3d
    
    at 712. Rather, it must show a reasonable basis for concluding that some markets exist in
    
    which MVPDs have the incentive and ability to harm unaffiliated networks and that
    
    application of the program carriage regime will alleviate that harm. See Turner II, 520 U.S.
    
    at 195; Turner I, 512 U.S. at 664–65 (plurality); Cablevision Sys. Corp. v. FCC, 649 F.3d at
    
    712. The FCC has met this burden.
    
           In reaching this conclusion, we are mindful that a law “impos[ing] current
    
    burdens . . . must be justified by current needs.” Shelby County v. Holder, 
    133 S. Ct. 2612
    ,
    
    2622 (2013) (internal quotation marks omitted).        We also recognize that the video
    
    programming industry has changed significantly over the last two decades: cable operators’
    
    share of the MVPD market has declined due to increased competition from DBS providers
    
    and telephone companies, OVDs are an increasingly available alternative to MVPDs, and
    
    vertical integration between cable operators and programming networks has decreased. See
    
    supra at [25–28]. These circumstances strongly suggest an industry trending toward more
    
    
                                                42
    rather than less competition. If the trend continues, a day may well come when the
    
    anticompetitive concerns animating Congress’s enactment of § 616(a)(3) and (5) will so
    
    effectively be eliminated or reduced as to preclude government intrusion on MVPDs’
    
    carriage decisions. See generally Time Warner Entm’t Co. v. FCC , 240 F.3d at 1135 (noting
    
    that, “at some point,” marginal value of increment in diversity “would not qualify as an
    
    ‘important’ governmental interest”). We here conclude only that such a day has not yet
    
    arrived.
    
           The industry’s current competitive posture presents “a ‘mixed picture’ when
    
    considered as a whole.” Cablevision Sys. Corp. v. FCC, 649 F.3d at 712 (quoting
    
    Cablevision Sys. Corp. v. FCC, 597 F.3d at 1314). Cable operators may not be as dominant
    
    as they were in 1992 when Congress enacted the Cable Act. Nevertheless, cable operators
    
    continue to hold more than 55% of the national MVPD market and to enjoy still higher
    
    shares in a number of local MVPD markets. See 2013 FCC Report ¶¶ 3, 96–97; 2011
    
    Comcast/NBCU Order ¶ 116 & n.275; see also Comcast Cable Commc’ns, LLC v. FCC, 717
    
    F.3d at 992 n.3 (Kavanaugh, J., concurring) (“In some local geographic markets around the
    
    country, [an MVPD] may have market power.”); Cablevision Sys. Corp. v. FCC, 649 F.3d
    
    at 712 (“[C]lustering and consolidation in the industry bolsters the market power of cable
    
    operators because a single geographic area can be highly susceptible to near-monopoly
    
    control by a cable company.” (internal quotation marks omitted)); Cablevision Sys. Corp. v.
    
    FCC, 597 F.3d at 1314 (“In designated market areas in which a single cable company
    
    
                                                43
    controls a clustered region, market penetration of competitive MVPDs is even lower than
    
    nationwide rates.”).8 Similarly, although vertical integration has generally declined, a
    
    significant number of national and regional programming networks remain affiliated with
    
    cable operators. See 2013 FCC Report ¶ 39, Table B-1, Table C-1; 2012 FCC Report
    
    ¶¶ 43–44; 2011 Comcast/NBCU Order ¶ 116; see also Cablevision Sys. Corp. v. FCC, 649
    
    F.3d at 712 (“[D]espite major gains in the amount and diversity of programming, as of
    
    2007[,] the four largest cable operators were still vertically integrated with six of the top 20
    
    national networks, some of the most popular premium networks, and almost half of all
    
    regional sports networks.” (alterations and internal quotation marks omitted)).
    
           Indeed, despite the Cable Companies’ assertions to the contrary, the 2011 FCC Order
    
    cited substantial record evidence that cable operators maintain significant shares in various
    
    local markets and that vertical integration remains pervasive in the video programming
    
    industry. In particular, the 2011 FCC Order relied on the 2011 Comcast/NBCU Order, which
    
    points out that, as of mid-2010, Comcast held a more-than-60% share in certain major MVPD
    
    markets. See 2011 Comcast/NBCU Order ¶ 116 (cited by 2011 FCC Order ¶ 33 nn.135–36).
    
    Additionally, the 2011 Comcast/NBCU Order explained that the vertical integration of
    
    
    
           8
             The Cable Companies rely on Comcast Corp. v. FCC, 
    579 F.3d 1
     (D.C. Cir. 2009),
    to argue that cable operators “no longer have the bottleneck power over programming that
    concerned the Congress in 1992,” id. at 8. The relevant market in that case, however, was
    the national MVPD market, not local MVPD markets. See id. As the D.C. Circuit has
    pointed out in the subsequent cases cited in text, cable operators retain market power in
    certain local MVPD markets.
    
                                                  44
    Comcast, the nation’s largest cable operator and MVPD, with NBCU, the nation’s fourth
    
    largest owner of programming networks, provides Comcast with an increased incentive and
    
    ability to harm unaffiliated networks. See id. ¶¶ 110, 116 (cited by 2011 FCC Order ¶ 33
    
    n.136).9
    
           From this record evidence, the FCC could reasonably conclude that cable operators
    
    continue to “have the incentive and ability to favor their affiliated programming vendors in
    
    individual cases, with the potential to unreasonably restrain the ability of an unaffiliated
    
    programming vendor to compete fairly.” 2011 FCC Order ¶ 33. As the 2011 FCC Order
    
    explained, see id. ¶ 4, in enacting the Cable Act, Congress sought to combat the threat that
    
    vertically integrated cable operators with market power pose to unaffiliated networks. A
    
    vertically integrated cable operator has an interest in the success of its affiliated networks and
    
    a corollary interest in harming, through adverse carriage decisions, unaffiliated networks that
    
    compete with its affiliates. If a vertically integrated cable operator possesses market power
    
    in a local MVPD market, by virtue of its bottleneck control, it has the ability to prevent an
    
    unaffiliated network from reaching a substantial portion of consumers in that market. It
    
    thereby may significantly inhibit the unaffiliated network’s ability to compete fairly in that
    
    area’s video programming market, potentially driving it from that market altogether. Based
    
    
           9
              We reject the Cable Companies’ argument that data regarding Comcast cannot be
    used to justify the program carriage regime’s regulation of other MVPDs’ speech. The Cable
    Companies have brought a facial, not an as-applied, challenge to the program carriage regime
    and, thus, we properly consider whether the video programming industry, in whole or in part,
    justifies the challenged regime. See Cablevision Sys. Corp. v. FCC, 649 F.3d at 712.
    
                                                   45
    on this competitive threat documented in the legislative history of the Cable Act, it was
    
    reasonable for the FCC to infer that, in some cases, a vertically integrated cable operator with
    
    a significant share of an MVPD market will have the incentive and ability to prevent
    
    unaffiliated networks from competing fairly in a video programming market.
    
           We recognize that a significant market share does not always translate into market
    
    power. “[N]ormally a company’s ability to exercise market power depends not only on its
    
    share of the market, but also on elasticities of supply and demand, which in turn are
    
    determined by the availability of competition.” Time Warner Entm’t Co. v. FCC, 240 F.3d
    
    at 1134 (emphasis omitted); accord Comcast Corp. v. FCC, 
    579 F.3d 1
    , 6 (D.C. Cir. 2009);
    
    see Tops Mkts., Inc. v. Quality Mkts., Inc., 
    142 F.3d 90
    , 98 (2d Cir. 1998) (“A court will
    
    draw an inference of monopoly power only after full consideration of the relationship
    
    between market share and other relevant market characteristics.”). Thus, as the Cable
    
    Companies suggest, in certain markets, despite an adverse carriage decision by a cable
    
    operator with a dominant market share, an unaffiliated network may still be able to reach
    
    many consumers through competing MVPDs, like DBS and telephone companies, and
    
    OVDs. Under such circumstances, a cable operator’s refusal to carry an unaffiliated network
    
    may lead consumers to switch to an alternative MVPD or to drop MVDP service in favor of
    
    OVDs in order to obtain access to that network. See Comcast Corp. v. FCC, 579 F.3d at 7;
    
    Time Warner Entm’t Co. v. FCC, 240 F.3d at 1134. This possibility of losing subscribers
    
    
    
    
                                                  46
    due to an adverse carriage decision would undercut a cable operator’s ability to wield market
    
    power to discriminate against unaffiliated networks.
    
           At the same time, however, we cannot overlook record evidence that cable operators
    
    maintain a more than 60% market share in certain MVPD markets, see 2011 Comcast/NBCU
    
    Order ¶ 116; that OVDs, which are still in their infancy as a medium, do not currently pose
    
    a significant competitive threat to MVPDs, see id. ¶¶ 63–66, 79; and that the video
    
    programming industry has a long history of economic dysfunction, see supra at [8–13].
    
    Given these facts, even if cable operators with dominant MVPD market shares may not
    
    exercise market power in all cases, the FCC had a substantial evidentiary basis to conclude
    
    that some cable operators maintain the capacity to inhibit unaffiliated networks from
    
    competing fairly, supporting a program carriage regime for identifying anticompetitive
    
    conduct on a case-by-case basis. See Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d at 99
    
    (“‘Sometimes, but not inevitably, it will be useful to suggest that a market share below 50%
    
    is rarely evidence of monopoly power, a share between 50% and 70% can occasionally show
    
    monopoly power, and a share above 70% is usually strong evidence of monopoly power.’”
    
    (quoting Broadway Delivery Corp. v. United Parcel Serv. of America, Inc., 
    651 F.2d 122
    ,
    
    129 (2d Cir. 1981))). We defer to that reasonable judgment. See Cablevision Sys. Corp v.
    
    FCC, 597 F.3d at 1314 (“We do not sit as a panel of referees on a professional economic
    
    journal, but as a panel of generalist judges obliged to defer to a reasonable judgment by an
    
    
    
    
                                                 47
    agency acting pursuant to congressionally delegated authority.” (alteration and internal
    
    quotation marks omitted)).
    
           The record also permitted the FCC reasonably to conclude that the program carriage
    
    regime would ameliorate the anticompetitive harm that vertically integrated cable operators
    
    pose to unaffiliated networks. Under that regime, when anticompetitive conduct is proved
    
    in a particular case, the FCC has the authority to order remedies appropriate to that case. The
    
    regime thus directly targets the threatened harm and provides the FCC with the means to
    
    redress it. In so doing, it promotes important government interests in fair competition and
    
    diversity of information sources in the video programming market.
    
                         b.      Narrow Tailoring
    
           To show that a regulation is narrowly tailored under intermediate scrutiny, the
    
    government need not demonstrate that the regulation is “the least speech-restrictive means
    
    of advancing the Government’s interests.” Turner I, 512 U.S. at 662. It must, however,
    
    show that the “regulation promotes a substantial government interest that would be achieved
    
    less effectively absent the regulation.” Id. (internal quotation marks omitted). “Narrow
    
    tailoring in this context requires, in other words, that the means chosen do not burden
    
    substantially more speech than is necessary to further the government’s legitimate interests.”
    
    Id. (internal quotation marks omitted).
    
           The program carriage regime is carefully tailored to avoid placing any greater burden
    
    on MVPDs’ editorial discretion than is warranted to promote competition and diverse
    
    
                                                  48
    programming sources. The regime prohibits only affiliation-based discrimination by MVPDs
    
    and only when such discrimination is shown to have an anticompetitive effect. It does not
    
    prohibit an MVPD from declining to carry an unaffiliated network because it opposes the
    
    views expressed by that network. See supra at [32–33]. It does not prohibit MVPDs from
    
    declining to carry an unaffiliated network for legitimate business reasons. See Comcast
    
    Cable Commc’ns, LLC v. FCC, 717 F.3d at 985; TCR Sports Broad. Holding, LLP v. FCC,
    
    679 F.3d at 272, 278; 2011 FCC Order ¶ 17.10              Nor does it necessarily prohibit
    
    affiliation-based discrimination in competitive markets, where there is a showing that such
    
    discrimination has beneficial effects that are not anticompetitive. See Comcast Cable
    
    Commc’ns, LLC v. FCC, 717 F.3d at 990 (Kavanaugh, J., concurring) (“Vertical integration
    
    and vertical contracts in a competitive market encourage product innovation, lower costs for
    
    businesses, and create efficiencies—and thus reduce prices and lead to better goods and
    
    services for consumers.”). Moreover, the regime requires the FCC to evaluate individual
    
    unaffiliated networks’ complaints on a case-by-case basis, and it demands proof of
    
    impermissible affiliation-based discrimination and anticompetitive effect before any
    
    restrictions are placed on the MVPD’s carriage decision.11
    
    
           10
             As stated supra at [32], an adverse carriage decision based on the views expressed
    by an unaffiliated network or a legitimate business reason is permissible only insofar as it is
    not a pretext for affiliation-based discrimination.
           11
             As discussed in section II.B. infra, we are today vacating the standstill rule because
    the FCC promulgated it in violation of the APA’s notice-and-comment requirements, and
    thus we consider the program carriage regime’s constitutionality without regard thereto.
    
                                                  49
           The Cable Companies nevertheless argue that the program carriage regime is not
    
    sufficiently tailored because neither § 616(a)(3) nor the prima facie standard established by
    
    the 2011 FCC Order explicitly requires an unaffiliated network to demonstrate that a
    
    purportedly discriminating MVPD possesses market power. The FCC responds that proof
    
    of market power is not necessarily a prerequisite to relief under the regime. We need not
    
    here decide whether a § 616(a)(3) violation can ever be shown in the absence of market
    
    power. The program carriage regime requires an unaffiliated-network complainant to make
    
    a case-specific showing that an MVPD “unreasonably restrain[ed]” its ability to “compete
    
    fairly,” 47 U.S.C. § 536(a)(3), and market power is generally a “significant consideration”
    
    under such a requirement, Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 
    551 U.S. 877
    ,
    
    885–86 (2007) (identifying market power as “significant consideration” in determining
    
    whether conduct is unreasonable restraint under § 1 of Sherman Act); see Comcast Cable
    
    Commc’ns, LLC v. FCC, 717 F.3d at 990 (Kavanaugh, J., concurring) (stating that, in
    
    antitrust law, “conduct generally can be considered unreasonable only if a firm, or multiple
    
    firms acting in concert, have market power”). In light of this fact, even if the regime does
    
    not explicitly require proof of market power, we expect that the FCC will consider market
    
    power in evaluating the vast majority of future § 616(a)(3) complaints. Thus, on this facial
    
    challenge to the overall program carriage regime, we conclude that the regime’s
    
    “unreasonable restraint” requirement renders it narrowly tailored so as not to burden more
    
    speech than necessary to advance the government’s interests. See generally Velazquez v.
    
    
                                                 50
    Legal Servs. Corp., 
    164 F.3d 757
    , 767 (2d Cir. 1999) (rejecting facial First Amendment
    
    challenge, but stating that “[a]ny grantee capable of demonstrating that . . . restrictions in fact
    
    unduly burden its capacity to engage in protected First Amendment activity remains free to
    
    bring an as-applied challenge”).
    
           In urging otherwise, the Cable Companies contend that the prima facie standard in fact
    
    precludes the FCC from considering market power and deems any adverse carriage decision
    
    by an MVPD with respect to an unaffiliated network an unreasonable restraint. In support,
    
    they point out that the 2011 FCC Order references several factors—not including market
    
    power—that the FCC has considered in past identifications of anticompetitive discrimination,
    
    such as, the impact of an MVPD’s adverse carriage decision on an unaffiliated network’s
    
    “subscribership, licensee fee revenues, advertising revenues, ability to compete for
    
    advertisers and programming, and ability to realize economies of scale.” 2011 FCC Order
    
    ¶ 15 n.60. The Cable Companies argue that analysis of such factors “is a truism, not a test,
    
    as a [programming network] can always show that its revenues would be greater if an MVPD
    
    had agreed to carriage (or carriage on a more widely distributed tier).” Time Warner Br. 49.
    
           We are not persuaded by these circumstances that the FCC is precluded from
    
    considering market power in making either a prima facie or final determination on a
    
    § 616(a)(3) complaint. As an initial matter, we decline to speculate that, in future cases
    
    applying the newly established prima facie standard, the FCC will rely exclusively on the
    
    
    
    
                                                    51
    factors it has previously used to identify a prima facie violation.12 Indeed, as we have already
    
    explained, we expect that the FCC will consider market power when evaluating the vast
    
    majority of future § 616(a)(3) complaints. Regardless, even if the FCC relied exclusively on
    
    those factors, it would not necessarily be precluded from considering market power because,
    
    at least in some circumstances, proof that an adverse carriage decision had the cited
    
    detrimental effects on an unaffiliated network may serve as a proxy for an inquiry into an
    
    MVPD’s market power. See generally FTC v. Ind. Fed’n of Dentists, 
    476 U.S. 447
    , 460–61
    
    (1986) (“[P]roof of actual detrimental effects, such as a reduction of output, can obviate the
    
    need for an inquiry into market power, which is but a surrogate for detrimental effects.”
    
    (internal quotation marks omitted)); accord Geneva Pharm. Tech. Corp. v. Barr Labs. Inc.,
    
    
    386 F.3d 485
    , 509 (2d Cir. 2004). Moreover, we do not assume that the FCC will effectively
    
    nullify the unreasonable restraint requirement of § 616(a)(3) by recognizing any detrimental
    
    effect on an unaffiliated network as sufficient to prove a prima facie violation, rather than
    
    demanding proof of the significant or material detrimental effect implicit in the term
    
    
    
           12
              For this reason, the pre-2011 cases cited by the Cable Companies, in which the FCC
    allegedly failed to require a showing of market power, are inapposite. In any event, it is not
    clear that the FCC failed to consider cable operators’ dominant market position in those
    cases. See Tennis Channel, Inc. v. Comcast Cable Commc’ns, LLC, 25 FCC Rcd. 14149,
    ¶ 20 (Med. Bur. 2010) (stating that Comcast’s “refusal to expand The Tennis Channel’s
    distribution” was “particularly detrimental to the network” because “Comcast is the dominant
    cable operator in seven of the ten largest television markets”); Herring Broad., Inc. v. Time
    Warner Cable, Inc., 23 FCC Rcd. 14787, ¶ 19 (Med. Bur. 2008) (stating that Time Warner
    has “quasi monopolies in key markets, such as New York and Los Angeles, that are essential
    to WealthTV’s long-term viability” (internal quotation marks omitted)).
    
                                                  52
    “unreasonable restraint.” See Capital Imaging Assocs., P.C. v. Mohawk Valley Med.
    
    Assocs., Inc., 
    996 F.2d 537
    , 546 (2d Cir. 1993) (stating that, under § 1 of Sherman Act, to
    
    prove unreasonable restraint, plaintiff must show that defendant’s conduct “had a
    
    substantially harmful effect on competition”).
    
           Nor are we persuaded by the Cable Companies’ arguments that narrow tailoring
    
    requires the FCC (1) to limit the program carriage regime to “particular geographic markets
    
    where the FCC could find, based on substantial evidence, that a particular MVPD
    
    exercised . . . bottleneck monopoly power,” Time Warner Br. 44; (2) to promote its “diversity
    
    interest without resorting to compelled speech,” by, for example, subsidizing or directly
    
    funding unaffiliated networks, id.; or (3) to create a regime that triggers less litigation and
    
    chills less speech.     Challenged government conduct will not necessarily fail the
    
    narrow-tailoring requirement whenever “there is some imaginable alternative that might be
    
    less burdensome on speech.” Turner II, 520 U.S. at 217. In any event, the Cable Companies
    
    have not demonstrated that their proposed alternatives are superior to the program carriage
    
    regime.
    
           First, it hardly makes sense to require the FCC to conduct an ex ante analysis of every
    
    MVPD market in the United States given the rapid changes occurring in the video
    
    programming industry. In such dynamic circumstances, it is a more efficient use of limited
    
    FCC resources, and a fairer treatment of the parties, for the agency to analyze an MVPD
    
    market when an unaffiliated network lodges an actual complaint of anticompetitive
    
    
                                                  53
    discrimination. Second, while subsidization or direct funding might enable unaffiliated
    
    networks to maintain financial viability despite affiliation-based discrimination, it would not
    
    necessarily provide such networks with access to consumers in markets where dominant
    
    MVPDs favored their affiliated networks. It is such access to consumers that enhances
    
    competition and diversity in the video programming market, and that is the relief the program
    
    carriage regime affords upon proof of affiliation-based discrimination. Finally, the prima
    
    facie standard established by the 2011 FCC Order, which requires evidence of
    
    affiliation-based discrimination and anticompetitive effect, allows the FCC to screen out
    
    frivolous complaints against MVPDs and thereby minimize the litigation burden and any
    
    possible chilling effect.13 Thus, because the “burden imposed” by the regime is “congruent
    
    to the benefits it affords,” we conclude that it is narrowly tailored. Turner II, 520 U.S. at
    
    215.
    
           In light of the real and significant competitive concerns that animated Congress’s
    
    1992 enactment of the Cable Act, the FCC reasonably proceeds with caution when
    
    confronting claims that changed market conditions no longer permit the law to intrude on
    
    MVPDs’ carriage decisions consistent with the First Amendment. At the same time, there
    
    is no denying that the video programming industry is dynamic and that the level of
    
    competition has rapidly increased in the last two decades. In light of these changes, some
    
    
           13
              The Cable Companies have pointed to no evidence that the program carriage regime
    has, in fact, chilled speech by deterring MVPDs from developing or investing in affiliated
    networks.
    
                                                  54
    of the Cable Act’s broad prophylactic rules may no longer be justified. See Comcast Corp.
    
    v. FCC, 579 F.3d at 8 (striking down under APA FCC rule that capped number of subscribers
    
    that cable operator could serve at 30% of all subscribers in national market). Nonetheless,
    
    “nothing prevents the Commission from addressing any remaining barriers to effective
    
    competition with appropriately tailored remedies.” Cablevision Sys. Corp. v. FCC, 649 F.3d
    
    at 712. We are satisfied that the program carriage regime currently serves this task.
    
           At oral argument, however, the FCC acknowledged the possibility that, at some future
    
    time, this conclusion will no longer obtain in light of increased competition in the video
    
    programming industry. From the record adduced by the parties, as well as the 2012 and 2013
    
    FCC Reports, we consider this possibility more real than speculative. Thus, at the same time
    
    that we uphold the program carriage regime today, we encourage the FCC to reevaluate the
    
    program carriage regime as warranted by increased competition in the video programming
    
    industry.14
    
    
    
    
           14
              For the same reasons that the program carriage regime survives intermediate
    scrutiny, we conclude that the prima facie standard is not arbitrary and capricious under the
    APA. See Cablevision Sys. Corp. v. FCC, 649 F.3d at 713 (“First Amendment intermediate
    scrutiny is, of course, substantially more demanding than arbitrary and capricious review of
    agency action.”)
            Further, because we conclude that the program carriage regime is constitutional, we
    need not address the FCC’s assertion that the Cable Companies waived their First
    Amendment and APA challenges to the prima facie standard.
    
                                                 55
           B.     APA Challenge
    
           Section 553 of the APA requires agencies to provide notice and an opportunity for
    
    public comment before a rule is promulgated. See 5 U.S.C. § 553(b), (c). The Cable
    
    Companies contend that the FCC did not adhere to the APA’s notice-and-comment
    
    requirements in establishing the standstill rule in the 2011 FCC Order. In response, the FCC
    
    claims that no notice or comment opportunity was required for the standstill rule because it
    
    addresses procedure rather than substance. In any event, the FCC submits that the 2007
    
    NPRM provided adequate notice of and opportunity to comment on the standstill rule.
    
           “In general, we will overturn an agency decision only if it was arbitrary, capricious,
    
    an abuse of discretion, or otherwise not in accordance with the law.” Cablevision Sys. Corp.
    
    v. FCC, 570 F.3d at 91 (internal quotation marks omitted). We agree with the Cable
    
    Companies that the FCC did not promulgate the standstill rule in accordance with the law
    
    because the agency failed to adhere to APA notice-and-comment requirements. We thus
    
    grant the Cable Companies’ petitions insofar as they challenge the standstill rule, and we
    
    vacate that rule without prejudice to the FCC’s re-promulgating in compliance with the APA.
    
                  1.      Procedural Rule Exception
    
           The APA’s notice-and-comment requirements apply only to “‘substantive,’” or what
    
    are sometimes termed “‘legislative,’” rules, not to, inter alia, “‘rules of agency organization,
    
    procedure, or practice.’” Lincoln v. Vigil, 
    508 U.S. 182
    , 196 (1993) (quoting 5 U.S.C.
    
    § 553(b)); see Electronic Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 
    653 F.3d 1
    , 5
    
    
                                                  56
    (D.C. Cir. 2011). In determining whether an agency has promulgated a substantive or a
    
    procedural rule, “the label that the particular agency puts upon its given exercise of
    
    administrative power is not, for our purposes, conclusive; rather it is what the agency does
    
    in fact.” Lewis-Mota v. Sec’y of Labor, 
    469 F.2d 478
    , 481–82 (2d Cir. 1972). Substantive
    
    rules “create new law, rights, or duties, in what amounts to a legislative act.” Sweet v.
    
    Sheahan, 
    235 F.3d 80
    , 91 (2d Cir. 2000) (internal quotation marks omitted); see Donovan v.
    
    Red Star Marine Servs., Inc., 
    739 F.2d 774
    , 783 (2d Cir. 1984) (stating that substantive rules
    
    “change existing rights and obligations” (internal quotation marks omitted)). A procedural
    
    rule, by contrast, “does not itself alter the rights or interests of parties, although it may alter
    
    the manner in which the parties present themselves or their viewpoints to the agency.”
    
    Electronic Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d at 5 (internal
    
    quotation marks omitted). Put another way, a procedural rule “does not impose new
    
    substantive burdens.” Id. (internal quotation marks omitted).
    
           Because all procedural rules affect substantive rights to some extent, see Lamoille
    
    Valley R.R. Co. v. ICC, 
    711 F.2d 295
    , 328 (D.C. Cir. 1983), the distinction between
    
    substantive and procedural rules might well be characterized as “one of degree depending
    
    upon whether the substantive effect is sufficiently grave so that notice and comment are
    
    needed to safeguard the policies underlying the APA,” Electronic Privacy Info. Ctr. v. U.S.
    
    Dep’t of Homeland Sec., 653 F.3d at 5–6 (internal quotation marks omitted). Those policies
    
    are “to serve the need for public participation in agency decisionmaking and to ensure the
    
    
                                                    57
    agency has all pertinent information before it when making a decision.” Id. at 6 (citations
    
    and internal quotation marks omitted). “In order to further these policies, the exception for
    
    procedural rules must be narrowly construed.” Id. (internal quotation marks omitted).
    
           We conclude that the standstill rule does not fall within the procedural rule exception
    
    to the APA’s notice-and-comment requirements. The standstill rule confers authority on the
    
    FCC temporarily to extend the term of a contractual agreement between an MVPD and an
    
    unaffiliated network while the network’s program carriage complaint is pending. It thus
    
    significantly affects substantive rights. Indeed, the FCC does not dispute this fact. Instead,
    
    it contends that the standstill rule does not impose a new substantive burden. According to
    
    the FCC, because it “has granted interim injunctive relief in a variety of contexts,”
    
    Respondents Br. 61, the standstill rule “merely codifies an existing procedure,” and thus “it
    
    does not affect substantive rights any more than the pre-existing standstill procedure did,”
    
    id. at 63. We are not persuaded.
    
           Even if the FCC has issued standstill orders in other contexts, it is not clear that it has
    
    the authority to issue such an order under the program carriage regime. Before the standstill
    
    rule’s establishment, no statute or regulation specifically conferred that authority on the FCC,
    
    and the FCC concedes that it has never imposed a standstill order in the program carriage
    
    context.15 Moreover, as the 2011 FCC Order itself acknowledges, there are serious questions
    
    
           15
             Because the FCC has never issued a standstill order in the program carriage context,
    it cannot rely on cases in which courts have held an agency rule procedural because it
    modified procedures, but not substantive standards, for an established agency practice. See
    
                                                   58
    as to whether §§ 616 and 624 of the Communications Act prohibit the FCC, at least in certain
    
    circumstances, from issuing a standstill order in the program carriage context. See 2011 FCC
    
    Order ¶ 26 n.107 (seeking comment on whether the standstill rule violates § 624 “in some
    
    circumstances” (emphasis in original)); id. ¶ 60 (“We seek comment on whether there are any
    
    circumstances in the program carriage context in which the Commission’s authority to issue
    
    temporary standstill orders is statutorily or otherwise limited.”); see also id. at 11610 & n.15
    
    (Commissioner McDowell, approving in part and dissenting in part) (stating that standstill
    
    rule has not been “reviewed by the Commission or a court for consistency with” §§ 616 and
    
    624 of Communications Act).16
    
           Given the substantive burden imposed by the standstill rule, the absence of an
    
    established FCC practice of issuing standstill orders in the program carriage context, and the
    
    uncertainty about the FCC’s authority to do so, “regardless whether this is a new substantive
    
    burden,” the standstill rule “substantively affects the public to a degree sufficient to implicate
    
    the policy interests animating notice-and-comment rulemaking.” Electronic Privacy Info.
    
    Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d at 5 (emphasis added; internal quotation
    
    
    
    
    JEM Broad. Co. v. FCC, 
    22 F.3d 320
    , 327 (D.C. Cir. 1994) (holding agency rule procedural
    because it employed same substantive standards as its predecessors); Notaro v. Luther, 
    800 F.2d 290
    , 291 (2d Cir. 1986) (holding agency rule procedural because “approach set out in
    the training aid accords with the Commission’s regulations and past practices”).
           16
             We express no opinion as to whether the standstill rule is consistent with §§ 616 and
    624 of the Communications Act.
    
                                                   59
    marks omitted). The rule thus is substantive and subject to the APA’s notice-and-comment
    
    requirements.
    
                    2.   Adequacy of Notice
    
           The APA “requires an agency conducting notice-and-comment rulemaking to publish
    
    in its notice of proposed rulemaking ‘either the terms or substance of the proposed rule or a
    
    description of the subjects and issues involved.’” Long Island Care at Home, Ltd. v. Coke,
    
    
    551 U.S. 158
    , 174 (2007) (quoting 5 U.S.C. § 553(b)(3)). We “have generally interpreted
    
    this to mean that the final rule the agency adopts must be ‘a logical outgrowth of the rule
    
    proposed.’” Id. (quoting National Black Media Coal. v. FCC, 
    791 F.2d 1016
    , 1022 (2d Cir.
    
    1986) (internal quotation marks omitted)). “Clearly, if the final rule deviates too sharply
    
    from the proposal, affected parties will be deprived of notice and an opportunity to respond
    
    to the proposal.” National Black Media Coal. v. FCC, 791 F.2d at 1022 (internal quotation
    
    marks omitted); accord Council Tree Commc’ns, Inc. v. FCC, 
    619 F.3d 235
    , 249 (3d Cir.
    
    2010). “The object, in short, is one of fair notice.” Long Island Care at Home, Ltd. v. Coke,
    
    551 U.S. at 174.
    
           “[G]eneral notice that a new standard will be adopted affords the parties scant
    
    opportunity for comment.” Horsehead Res. Dev. Co. v. Browner, 
    16 F.3d 1246
    , 1268 (D.C.
    
    Cir. 1994). Thus, an agency’s APA “obligation is more demanding.” Id. It must “describe
    
    the range of alternatives being considered with reasonable specificity.” Prometheus Radio
    
    Project v. FCC, 
    652 F.3d 431
    , 450 (3d Cir. 2011) (internal quotation marks omitted).
    
    
                                                 60
    “Otherwise, interested parties will not know what to comment on, and notice will not lead
    
    to better-informed agency decision-making.” Id. (internal quotation marks omitted). Indeed,
    
    “unfairness results unless persons are sufficiently alerted to likely alternatives so that they
    
    know whether their interests are at stake.” National Black Media Coal. v. FCC, 791 F.2d at
    
    1023 (alteration and internal quotation marks omitted).
    
           Here, the 2007 NPRM did not specifically indicate that the FCC was considering
    
    adopting a standstill rule. Nor can that rule be considered the logical outgrowth of the issues
    
    described in the 2007 NPRM. While the 2007 NPRM did seek comment on whether the FCC
    
    should “adopt rules to address the complaint process itself” and, specifically, whether it
    
    “should adopt additional rules to protect [programming networks] from potential retaliation
    
    if they file a complaint,” 2007 NPRM ¶ 16, those solicitations are too general to provide
    
    adequate notice that a standstill rule was under consideration as a means to provide such
    
    protection. Thus, interested parties had no reason to comment on such a measure. See
    
    Prometheus Radio Project v. FCC, 652 F.3d at 450 (holding notice inadequate where it asked
    
    “two general questions” that failed to solicit comment on “overall framework under
    
    consideration”); Horsehead Res. Dev. Co. v. Browner, 16 F.3d at 1268 (concluding notice
    
    inadequate where it failed to indicate form that “ultimate standard” might take). Even if it
    
    was the FCC’s intent to solicit comment on a standstill rule, “an unexpressed intention cannot
    
    convert a final rule into a logical outgrowth that the public should have anticipated.” Council
    
    Tree Commc’ns, Inc. v. FCC, 619 F.3d at 254 (internal quotation marks omitted).
    
    
                                                  61
           Indeed, the record shows that the public did not, in fact, anticipate that the FCC would
    
    adopt a standstill rule based on the 2007 NPRM. None of the commenters addressed such
    
    a rule during the official comment period—a fact that strongly suggests that the 2007 NPRM
    
    provided insufficient notice. See Prometheus Radio Project v. FCC, 652 F.3d at 452 (stating
    
    that lack of comments during official comment period showed that “interested parties were
    
    prejudiced” by inadequacy of notice); see also National Exch. Carrier Ass’n, Inc. v. FCC,
    
    
    253 F.3d 1
    , 4 (D.C. Cir. 2001) (“[T]he logical outgrowth test normally is applied to consider
    
    whether a new round of notice and comment would provide the first opportunity for
    
    interested parties to offer comments that could persuade the agency to modify its rule.”
    
    (internal quotation marks omitted); cf. Horsehead Res. Dev. Co. v. Browner, 16 F.3d at 1268
    
    (“[I]nsightful comments may be reflective of notice and may be adduced as evidence of its
    
    adequacy.”).
    
           That conclusion is reinforced by the fact that, in a similar context, under the program
    
    access provision of the Cable Act, see 47 U.S.C. § 548, the FCC expressly sought comment
    
    on whether it should adopt a standstill rule.17 See Council Tree Commc’ns, Inc. v. FCC, 619
    
    F.3d at 254 (deeming it “instructive that the FCC had previously solicited broader
    
    comment . . . , and in much more specific terms than it did here”). That the FCC, with
    
    
    
           17
             See Implementation of the Cable Television Consumer Protection & Competition
    Act of 1992, 22 FCC Rcd. 17791, ¶¶ 135–37 (2007) (discussing proposal to adopt standstill
    requirement and seeking comment on issuance of temporary stay orders); see also 47 C.F.R.
    § 76.1003(l) (setting forth standstill requirements for program access complaints).
    
                                                  62
    release of the 2011 FCC Order, solicited comment on several key aspects of the standstill
    
    rule’s implementation, including whether its authority to issue standstill orders in the
    
    program carriage context is statutorily or otherwise limited, further indicates that the agency
    
    did not adequately solicit comments on the standstill rule in the first instance. See
    
    Prometheus Radio Project v. FCC, 652 F.3d at 451–52 (stating that later specific notice
    
    requesting comment indicated that earlier less-specific notice was insufficient).
    
           Accordingly, we hold that the standstill rule was promulgated in violation of the
    
    APA’s notice-and-comment requirements and, therefore, we order that it be vacated without
    
    prejudice to the FCC attempting to re-promulgate it consistent with the APA.18
    
    III.   Conclusion
    
           To summarize, we conclude as follows:
    
           1. Section 616(a)(3) and (5) of the Communications Act of 1934, as amended by the
    
    Cable Television Consumer Protection and Competition Act of 1992, and the prima facie
    
    standard established thereunder by the 2011 FCC Order, are content and speaker neutral and,
    
    thus, petitioners’ First Amendment challenge warrants intermediate, rather than strict,
    
    scrutiny. The challenged program carriage regime satisfies intermediate scrutiny because its
    
    case-specific standards for identifying affiliation-based discrimination (a) serve important
    
    
           18
             In light of our decision to vacate, we do not reach the Cable Companies’ substantive
    challenges to the standstill rule under the First Amendment, APA, and Communications Act,
    as these concerns may be obviated if the FCC does not re-promulgate the rule or if it
    proposes—or after comment adopts—a modified rule not presenting the problems raised in
    these challenges.
    
                                                  63
    government interests in promoting competition and diversity in an industry still posing
    
    serious competitive risks, and (b) are narrowly tailored not to burden substantially more
    
    speech than necessary to further those interests.
    
           2. The standstill rule promulgated by the 2011 FCC Order is substantive and, thus,
    
    subject to the notice-and-comment requirements of the APA. The FCC failed to comply with
    
    those requirements.
    
           Accordingly, the petitions for review are DENIED IN PART, insofar as they raise a First
    
    Amendment challenge to the program carriage regime, and GRANTED IN PART, insofar as they
    
    raise an APA challenge to the standstill rule. The FCC’s standstill rule is VACATED without
    
    prejudice to the agency’s re-promulgating it consistent with the APA.
    
    
    
    
                                                 64