Must-Carry Still A Must

High Court Nixes Cablevision Review Request

By John Eggerton -- Multichannel News, 5/24/2010 12:01:00 AM

Washington — With the judicial equivalent of the wave of a hand, the U.S. Supreme Court has declined to review the Federal Communications Commission’s must-carry rules.

The high court did not give a reason last week for denying a certiorari petition in Cablevision Systems’ appeal of an FCC market modification decision.

For cable operators, the no decision means no near-term relief from the obligation to carry certain over-the-air TV stations on the entry-level programming package all pay TV subscribers must buy, including stations that expand the boundaries of their “local market” to gain more cable carriage.

Former National Cable & Telecommunications Association attorney Daniel Brenner, now a partner at Hogan Lovells, said he doesn’t see a case in the pipeline that would give the justices another shot at must-carry, and said the facts in the Cablevision case “had been pretty good for cable.”

A three-judge panel from the 2nd U.S. Circuit Court of Appeals in June 2009 rejected Cablevision’s challenge to an FCC order requiring carriage of WRNN in Kingston, N.Y., in some Long Island communities under the market-modification provisions of must-carry. (Kingston is in Ulster County, some 91 miles from New York City, the television market which includes Long Island.)

The full court in October rejected Cablevision’s petition for a rehearing. In the process, the 2nd Circuit panel took an expansive view of the benefits of must-carry, citing the Turner decision and concluding that it did not mean to limit the rule to the minimum of replicating a DMA.

To put an appeal on the Supreme Court’s calendar, only four justices must support it. That means at least six members of the highest court were not eager to review the must-carry rules.

A smaller majority, of 5-4, upheld must-carry rules in 1994 and 1997 in the Turner Broadcasting System v. FCC cases.

Brenner warned against reading too much into those numbers. “They take so few cases,” he said of the Supreme Court, “that you don’t know whether it’s the facts or whether it was the other cases competing with it.”

The court has already weighed in on a number of First Amendment cases, Brenner noted. “That might make them think about moving on to a different area of constitutional law,” he said.