NCTA Backs Cablevision's Must-Carry Challenge

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The National Cable & Telecommunications Association is
among those supporting Cablevision's appeal of the must-carry rules at
the
Supreme Court.
The trade group on Feb. 26 said it had filed a brief in support of
the
challenge. In that brief, NCTA cited the Federal Communications Commission's inquiry into whether
broadcast
spectrum could be reclaimed for wireless broadband as part of its
argument (the agency just this week outlined is reclamation/auction plan).
"With even the
Commission suggesting that broadcast spectrum should be put to better
use, it
is clear that broadcast television no longer serves an 'important'
government
interest to the extent that it used to," said NCTA.
The cable group said
that "changed circumstance" has "drastically"
shifted the balance between the government's interest in must-carry and
its
burden on speech.
Cablevision pointed out in its filing that even more than a decade ago,
the
Supreme Court's decisions -- two of them -- upholding must-carry was razor
thin.
The cable operator said that in the intervening years "the factual
underpinnings of those decisions have evaporated." What was once a cable
monopoly, Cablevision concedes to the court, "has been replaced by
vibrant
competition."
Rather than being an MVPD bottleneck, Cablevision
suggested,
the market has been reshaped into a wide-necked vase in which all
flowers can
bloom.
NCTA agrees, pointing out that the High Court in upholding must-carry
in the
Turner cases recognized that the rule did impinge on speech, but pointed
to
cable's bottleneck power as requiring only intermediate scrutiny of its
effects
on speech, rather than strict scrutiny.
That has changed; cable is now faced with lots of competition. Given those adversaries, must-carry's restrictions on cable speech does not pass
muster
under either strict or intermediate scrutiny, said NCTA in asking the
court to hear
the Cablevision challenge.
C-SPAN
also
filed a brief
in support of the challenge earlier this week.
Specifically, Cablevision wants the court to hear
its
appeal
of a Second Circuit decision upholding the FCC's must-carry
mandate for station WRNN.

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