Policy

C-SPAN Backs Dish in Mandates Challenge

11/21/2011 12:01 AM Eastern

Washington — C-SPAN is backing Dish
Network in its effort to get the Supreme Court
to overturn Congress’ mandate that the No. 2
U.S. satellite-TV provider carry the HD feeds of
noncommercial stations.

Dish last month filed a petition
for certiorari seeking
high court review of a 9th U.S.
Circuit Court of Appeals decision
last February. That decision
upheld the district court
that refused to issue a preliminary
injunction against
implementing the Satellite
Television Extension and Localism
Act’s (STELA) mandate
that Dish carry noncommercial
TV stations in HD (Sec.
207). Dish also asked the high
court to rule on which First
Amendment test should apply
to the mandate that it carry
noncoms in HD in advance of the HD feeds
of other stations.

Englewood, Colo.-based Dish also wants
to know, generally, which standard for First
Amendment scrutiny should apply across various
media.

At issue, if the Supreme Court takes the case,
could be the underpinnings of the entire government
must-carry regime. C-SPAN certainly
hopes so.

“We’re trying to make the point that
must-carry, in all forms, is unfair and an infringement
on our First Amendment rights,”
C-SPAN vice president and general counsel
Bruce Collins told Multichannel News.

He noted that the Supreme Court upheld
must-carry in the Turner Broadcasting System
v. the Federal Communications
Commission II

decision by the thinnest of
margins.

For C-SPAN, the issue is
not academic, because the
more channels carried because
of government mandate,
the less room there is
for its public-affairs offerings.

“The First Amendment
harm inflicted upon C-SPAN
(and other similarly situated
programmers) by the statute’s
operation is far from
theoretical,” C-SPAN told the
court. “Indeed, between June 1993 and the
end of the 1990s, 12 million cable homes lost
all or some access to C-SPAN’s public-service
programming as cable operators were forced
to make room on their systems to carry hundreds
of additional broadcast stations.”

C-SPAN has consistently argued that the
must-carry rules are an infringement on
speech, including supporting Cablevision
Systems last year in its unsuccessful effort
to get the Supreme Court to hear its appeal
of the must-carry rules.

“C-SPAN has always asserted that the establishment
of a hierarchy of speakers, under
which broadcasters are guaranteed cable carriage
under the must-carry regime while cable
programmers like C-SPAN must compete
for whatever carriage remains, cannot be justified under the First Amendment. PBS should
not be mandated by law to cut in line in front
of C-SPAN to reach the marketplace of ideas,”
the cable-industry-funded programmer said.

Technology has changed the facts since
1997 when the Supreme Court, in a 5-4 vote,
upheld must carry, C-SPAN pointed out in the
brief. Congress, in putting must-carry rights
into the Cable Act of 1992, determined that
offering an A/B switch (for viewers to toggle
between the cable feed and over-the-air reception)
was not a feasible alternative to guaranteeing
broadcasters cable carriage.

“In the digital world, A/B switches are
built into television receivers and can be easily
controlled from a TV remote-control device,’”
C-SPAN said, quoting the FCC.