Cablevision Seeks Must-Carry Knockout

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As promised, Cablevision Systems has asked the U.S. Supreme Court to review the constitutionality of the must-carry rules, which require cable operators to carry local broadcast-TV stations.

In its filing, Cablevision pointed out that even more than a decade ago, the Supreme Court’s decisions upholding must-carry — two of them — were razor-thin. In the intervening years, “the factual underpinnings of those decisions have evaporated,” said the Bethpage, N.Y.-based MSO.

What was once a cable monopoly, Cablevision conceded to the court, “has been replaced by vibrant competition.” Rather than there being a bottleneck in the multichannel-video market, Cablevision suggested, the industry has been reshaped into a wide-necked vase in which all flowers can bloom.

The rationale for the Turner Brodadcasting vs. FCC decisions — which upheld must-carry rules — has been gutted, according to the company, while the FCC continues to subsume cable’s editorial judgment. The commission has even expanded those rules to cover conduct that would not be covered by the Turner rationale even if it were still relevant, Cablevision added.

“The continuing validity of that intrusion on constitutionally protected interests and the permissibility of expanding its application to new contexts present precisely the kind of important constitutional issues that should constitute the core of this Court’s docket,” Cablevision said in its filing.

Specifically, Cablevision wants the court to hear the cable company’s appeal of a U.S. Court of Appeals for the 2nd Circuit decision upholding the FCC’s must-carry mandate for WRNN, a station licensed to Kingston in upstate New York that has sought must-carry status on Cablevision’s Long Island systems.

The company is taking aim at the entire must-carry regime armed with the decision by the U.S. Court of Appeals for the D.C Circuit earlier this year in Comcast v. FCC, which threw out a rule that said no single provider could serve more than 30% of all U.S. pay TV subscribers. It plans to argue that the lack of robust competition and the presence of a cable bottleneck no longer exist, and were the underpinnings of the Supreme Court’s close decisions to uphold the rules in two earlier challenges by Turner.

Cablevision received a Dec. 9 stay of the 2nd Circuit’s mandate to carry WRNN pending the outcome of the company’s request for a Supreme Court hearing. A source says Cablevision was planning to challenge that decision with or without the Comcast ruling, given the rise in competition in the marketplace, but the D.C. Circuit’s verdict just provided more ammunition.

A three-judge panel of the 2nd Circuit in June 2009 rejected Cablevision’s challenge to an FCC order requiring carriage of WRNN in some Long Island communities under the market-modification provisions of must-carry. In October, the 2nd Circuit rejected Cablevision’s petition for a rehearing before the full court.

In the process, the court took an expansive view of the benefits of the must-carry rule, citing the Supreme Court’s Turner decision and concluding that it did not mean to limit must-carry to the minimum of replicating a television market.

In its Supreme Court filing Jan. 27, Cablevision asked the court why a cable operator should be compelled to carry programming of a broadcast station to an area that station can’t reach over the air. That argument could have wider implications.

One proposal floated for reclaiming spectrum from broadcasters for wireless broadband proposed must-carry for a cable-only HD signal as a way to reduce the bandwidth broadcasters were using.

Cablevision argued that the 2nd Circuit’s decision, which was backed by the National Association of Broadcasters, conflicts with the 1994 Turner I and II decisions narrowly upholding must-carry, as well as the D.C. Circuit’s conclusion regarding the 30% cap that “now that cable operators are subject to robust competition, the FCC can no longer identify the 'sufficient’ basis” demanded by the Supreme Court in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) ('Turner I’), for imposing upon cable operators “special obligations” like must-carry.

A split in federal appeals court decisions is one of the tests for the Supreme Court’s decision to hear an appeal. Another test is whether the case falls under the First Amendment, as Cablevision is arguing here.

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