C-SPAN Urges High Court to Deep-Six Must-Carry Rules

By John Eggerton -- Multichannel News, 3/1/2010 10:54:00 AM

Washington — C-SPAN has joined Cablevision Systems in asking the Supreme Court to overturn the federal must-carry rules requiring cable operators to retransmit over-the-air TV stations that elect not to negotiate for carriage.

“Amid today’s expanding marketplace of program-delivery options, must-carry is a relic of the past that should be clicked and dragged to the recycle bin of regulatory overkill,” C-SPAN vice president and general counsel Bruce Collins said in announcing the move.

The cable public-affairs programmer, whose networks must compete for channel space with over-the-air stations that elect must-carry, has long argued that giving broadcasters a guaranteed right to carriage — while requiring networks such as C-SPAN to vie for what space is left — violates the First Amendment.

C-SPAN said its case is now even stronger with a more competitive marketplace for TV station fare. In earlier court challenges, CSPAN has argued that A/B switches that allow cable or satellite subscribers to switch to over-the-air reception were a less-infringing way to preserve access to broadcast stations.

In the 1997 second Turner Broadcasting System vs. FCC decision (the first case was in 1994), the Supreme Court ruled that the switch was not a feasible alternative, echoing Congress’s view in enacting the 1992 Cable Act. Today, C-SPAN argues, such a switch is built into TVs and can be “easily” controlled from a remote.

Cablevision last month asked the Supreme Court to review the constitutionality of must-carry rules, arguing that their rationale has been gutted.