Washington — With the judicial equivalent of the wave of a hand,
the U.S. Supreme Court has declined to review the Federal Communications
Commission’s must-carry rules.
The high court did not give a reason last week for denying a certiorari
petition in Cablevision Systems’ appeal of an FCC market modification decision.
For cable operators, the no decision means no near-term relief
from the obligation to carry certain over-the-air TV stations on the
entry-level programming package all
pay TV subscribers must buy, including
stations that expand the boundaries
of their “local market” to gain
more cable carriage.
Former National Cable & Telecommunications
Daniel Brenner, now a partner at
Hogan Lovells, said he doesn’t see a case in the pipeline that would
give the justices another shot at must-carry, and said the facts in the
Cablevision case “had been pretty good for cable.”
A three-judge panel from the 2nd U.S. Circuit Court of Appeals in
June 2009 rejected Cablevision’s challenge to an FCC order requiring
carriage of WRNN in Kingston, N.Y., in some Long Island communities
under the market-modification provisions of must-carry.
(Kingston is in Ulster County, some 91 miles from New York City, the
television market which includes Long Island.)
The full court in October rejected Cablevision’s petition for a rehearing.
In the process, the 2nd Circuit panel took an expansive view of the
benefits of must-carry, citing the Turner decision and concluding that it
did not mean to limit the rule to the minimum of replicating a DMA.
To put an appeal on the Supreme Court’s calendar, only four justices
must support it. That means at least six members of the highest
court were not eager to review the must-carry rules.
A smaller majority, of 5-4, upheld must-carry rules in 1994 and
1997 in the Turner Broadcasting System v. FCC cases.
Brenner warned against reading too much into those numbers.
“They take so few cases,” he said of the Supreme Court, “that you
don’t know whether it’s the facts or whether it was the other cases
competing with it.”
The court has already weighed in on a number of First Amendment
cases, Brenner noted. “That might make them think about moving
on to a different area of constitutional law,” he said.