In a novel twist in the program-access debate, Cablevision Systems Corp. is
claiming that federal rules that compel the sale of cable programming violate
the First and Fifth Amendment and should be eliminated.
In comments filed Monday at the Federal Communications Commission,
Cablevision said rules banning program exclusivity in a competitive market were
not consistent with First Amendment free-speech protections.
The MSO also said program-access rules run afoul of the Fifth Amendment
because cable operators are forced to forfeit property rights and share
programming with competitors.
'These serious constitutional infirmities argue strongly against [FCC]
re-enactment of the exclusivity ban after its congressionally mandated sunset,'
The First Amendment protects against government restriction on speech and the
Fifth Amendment bars the taking of private property for public use without just
Under federal law and FCC rules, cable competitors are entitled to buy
cable-owned satellite-delivered networks. The exclusivity ban sunsets Oct. 5,
2002, unless extended by the FCC. The agency is conducting a rulemaking to
decide whether to postpone the sunset.
Cablevision is the country's seventh-largest cable operator, with 3 million
subscribers. It has large national and regional programming interests held in
Rainbow Media Holdings Inc.
In other comments, Comcast Corp. said the rules were no longer justified
because cable's control over programming has declined and cable competitors such
as direct-broadcast satellite carriers were not in jeopardy of losing access to
'abundant sources of programming.'
Comcast Corp. is the third-largest cable company, with 8.4 million
subscribers. The Philadelphia-based MSO has majority ownership of QVC, Comcast
SportsNet, The Golf Channel and Outdoor Life Network, as well as a controlling
interest in E! Networks.
In its comments, Comcast noted that the program-access rules are likely
deterring DBS carriers from investing in their own programming. Neither of the
two major DBS carriers -- EchoStar Communications Corp. and DirecTV Inc. -- has
ownership in national or regional programming networks.
'Because DBS operators have developed a heavy dependence on quality
programming created by their competitors, they have had little incentive to
invest in programming despite their significant and increasing importance in
multichannel-video distribution,' Comcast said.
Comments from EchoStar and DirecTV were not available Monday.
In the past, both DBS firms -- which are planning to merge in a $25.8 billion
deal -- have voiced strong support for extending the exclusivity