Washington-Rep. Rick Boucher, who has fought to bring satellite-TV service to his rural Southwest Virginia district for years, has praised the industry's decision to challenge federal must-carry rules in court.
"I think filing the suit was correct," the Democrat said last week. "The must-carry rules as applied to satellite are, in my opinion, clearly unconstitutional."
On Sept. 20, the Satellite Broadcasting and Communications Association, DirecTV Inc. and EchoStar Communications Corp., filed a lawsuit in federal court in Alexandria, Va. They seek to overturn must-carry under the First and Fifth Amendments to the U.S. Constitution.
Starting Jan. 1, 2002, direct-broadcast satellite carriers will be required to carry all broadcast-TV stations in any market where they provide just one local-TV signal. The DBS industry said the requirement would consume channel capacity, depriving secondary markets from receiving widely viewed ABC, CBS, Fox and NBC television-network affiliates via satellite.
The industry said the mandate violates free-speech rights and takes property without just compensation.
"I would bet large sums that when the Supreme Court hears the suit.they will find it is unconstitutional," Boucher said.
Boucher said the high court narrowly upheld cable must-carry rules, 5-4, in 1997, but only after determining that cable was a monopoly. The same cannot be said for DBS, he claimed.
"The satellite industry is, by definition, competitive," Boucher said.
Boucher was part of the bipartisan coalition that shaped and passed the Satellite Home Viewer Improvement Act, which President Clinton signed into law on Nov. 30, 1999.
Meanwhile, Senate Judiciary Committee chairman Orrin Hatch (R-Utah) said he believed the satellite industry promised not to challenge must-carry in exchange for a copyright license allowing carriers to provide local-TV stations for free.
"It was implied, but you can't tell people what to do, litigation-wise," said Hatch, who also played a major role in the measure's passage.
Unlike Boucher, Hatch was more sanguine about the fate of DBS must-carry rules in the courts.
"I think must-carry has been upheld in the past and I presume it would be upheld in the future," Hatch said.
Northpoint Technology Ltd., which wants Federal Communications Commission approval to share DBS spectrum to provide local-TV signals in all 210 markets, said the SBCA "turned its back" on a deal with Congress that included authorization to provide local-TV signals in exchange for full must-carry in a few years.
"The DBS industry pleading demonstrates that DBS has no interest in fostering a diversity of voices or providing much needed local-television service to rural and underserved areas," Northpoint said in a Sept. 22 statement.
Northpoint said the DBS industry's "failure to live up to their promise to carry all local stations" shows the need for prompt FCC action to approve its application to share DBS spectrum.
The DBS industry, led by the SBCA, has fought Northpoint's FCC request, and claims the terrestrial offering would disrupt service to millions of DBS subscribers.
"This is an opportunistic smoke-and-mirrors tactic by Northpoint," SBCA spokesman James Ashurst said. "The basis of our suit is plain and simple, and that is we want to bring local channels to more small and midsized markets."