NAB Seeks High Court Review of Cable Case


The National Association of Broadcasters has asked the Supreme Court to review a case that struck down a key cable-ownership rule adopted by the Federal Communications Commission in 1999.

The NAB said the case deserved review because the decision appeared to support the proposition that cable operators can rely on the First Amendment to defeat economic regulations that do not directly affect speech.

"The court should grant review in this case to clarify that structural economic regulation is not subject to heightened First Amendment review whenever such regulation is directed at a media or communications entity," the NAB said in a Nov. 2 brief.

On March 2, a panel of the U.S. Court of Appeals for the District of Columbia Circuit struck down an FCC rule that limited a cable operator to no more than 30 percent of pay-TV subscribers. The panel also voided a rule that capped the number of channels a cable operator could occupy with affiliated programming.

The Justice Department, working in tandem with the FCC, declined to seek rehearing by the D.C. Circuit or Supreme Court review. However, the Consumer Federation of America and the Consumer Union filed to have the Supreme Court the cap decision.

In the meantime, the FCC went forward with revamping its cable-ownership rules in response to the D.C. Circuit opinion. New rules are several months away from being adopted.

In its brief, the NAB did not ask the high court to address specifically the merits of the 30 percent cap.

Instead, the NAB said the Supreme Court needed to impose some harmony on the standards of review that courts apply in reviewing laws and regulations that affect the cable industry.

The NAB said it was incorrect for the D.C. Circuit to have based its cable ownership decision on the Supreme Court's ruling that required cable operators to carry local TV stations.

The must-carry case, NAB said, did affect the speech of cable operators and thus heightened First Amendment review was appropriate. But that level of review should not be automatically applied in cases that deal broadly with cable's economic structure, the NAB added.

In a separate brief, the Justice Department said that although it disagreed with the D.C. Circuit's decision, it did not believe that the Supreme Court should take the case.

The Justice Department said the lower court rejected the FCC's defense of the 30 percent cap, but did not bar the FCC from imposing a new cap with proper justification.

AT&T Corp. and Time Warner Entertainment L.P. — the two cable operators that successfully attacked the 30 percent cap — filed a brief with the Supreme Court asserting that review should be denied.

The companies said it would be "extraordinary" for the high court to take a case in which the the agency whose rules were struck down in a lower court — the FCC — is actively opposing review.