C-SPAN is backing Dish in its effort to get the Supreme Court to overturn a Congressional mandate that the No. 2 DBS provider carry the HD feeds of noncommercial stations.
Dish last month filed a petition for certiorari, asking the High Court to review a Ninth Circuit Appeals court decision last February, upholding a district court's denial of the satellite company's request for a preliminary injunction against implementing the Satellite Television Extension and Localism Act's (STELA) noncom HD mandate on DISH (Sec. 207).
Dish also asked the court to rule on what First Amendment test should apply to the mandate that it carry noncommercial stations in HD in advance of the HD feeds of other stations. At issue: if the Supremes take 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.
For C-SPAN, the issue is not an academic one, since the more channels the government mandates be carried, the less room there is for its public affairs offering. "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 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....It is foreseeable that mandatory carriage regimes such as Section 207 will have comparable effects on other programmers, since each HD station consumes the same bandwidth as would be required for four standard-definition channels," said C-SPAN.
Technology has changed the facts since that 1997 Supreme Court vote, says C-SPAN in the brief. Specifically, it talks about the use of an A/B switch, which C-SPAN has argueed was a less restrictive way of preserving subscribers access to over-the-air channels -- the switch essentially toggles between the cable feed and over-the-air reception. While in the Cable Act of 1992, which established the must-carry rules, the Congress determined that the switch was not a feasible alternative, C-SPAN says technology has changed since then. "In the digital world, A/B switches are 'built into television receivers and can be easily controlled from a TV remote control device,'" said C-SPAN, quoting the FCC.
"If the court took a new look at must carry," said Collins, "as it would if it took this case, it would conclude that it infringes on our rights and can't be justified under traditional First Amendment analysis. "C-SPAN agrees with Petitioners that the time has come for this Court to give guidance in this area as to when, if ever, the First Amendment abridgements carriage mandates inflict are justified," Collins argues in the brief, which he filed along with Bruce Sokler of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo.