Washington -- Is Cablevision Systems Corp. versus Univision
Communications Inc. just another regulatory dustup at the Federal Communications
Some inside the FCC think that Cablevision chairman Charles
Dolan is gearing up to use the controversy to challenge the constitutionality of the 1992
Cable Act's must-carry and channel-positioning requirements under the Fifth
The Fifth Amendment prohibits the taking of private
property without just compensation. In upholding must-carry in a 5-4 vote March 31, 1997,
the Supreme Court said the law did not violate cable's First Amendment free-speech
FCC sources said they urged Cablevision and Univision to
settle their dispute privately. But they got the sense that Cablevision was ready to go to
court and to use the $3 million price tag of the WXTV ruling as the basis for citing Fifth
"I think that the cable industry has been looking for
a great 'as-applied' case for a long time," an FCC source said.
Cablevision urged the FCC to dismiss WXTV's complaint
based on the Fifth Amendment, but the agency refused. The FCC's Cable Services Bureausaid it did not have the authority to declare acts of Congress unconstitutional.
In a statement, Cablevision said it felt that the FCC
recognized possible Fifth Amendment injury when the agency said the MSO would not have to
spend $1 million to fix a 27,000-subscriber system to distribute WXTV on its FCC-assigned
"We are pleased that the FCC Cable Services Bureau
recognized the legitimacy of our takings claim and the issue of uncompensated costs,"
Cablevision senior counsel for regulatory and legal affairs David Ellen said.
Some FCC officials believe that the cable industry might
use any Cablevision Fifth Amendment challenge to tell the FCC to postpone its
digital-must-carry rulemaking while the case is pending.
In the digital must-carry proceeding, the National Cable
Television Association gave prominent attention to its Fifth Amendment concerns, hiring
Harvard Law School professor Laurence Tribe to frame the industry's arguments.