The National Association of Broadcasters is asking the Supreme Court to
review a case that broadly struck down cable-ownership rules adopted by the
Federal Communications Commission.
The NAB said the case deserved review because the decision appears to support
the proposition that cable operators can rely on the First Amendment to defeat
structural and economic regulation that doesn't 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 cable
operators could occupy with affiliated programming and a few
The Department of Justice, 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 Consumers Union filed for Supreme Court review.
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 and the other FCC ownership rules.
Instead, the trade group said, the Supreme Court needed to impose some
harmony on the standards of review that courts apply in reviewing law and
regulations that affect the cable industry.
The association said it was incorrect for the D.C. Circuit to base its
cable-ownership decisions on the Supreme Court's ruling that required cable
operators to carry local TV stations.
The must-carry case, the NAB said, did impact 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 association added.
The NAB said it was critical for the Supreme Court to settle this dispute
because 'these questions will continue to arise in numerous cases,' especially
'given the frequency with which Congress adopts legislation affecting the cable
and other telecommunications industries.'