Forcing multicast must-carry on cable operators could cost the federal government billions of dollars if courts found that the carriage obligation was an unconstitutional seizure of private property, the National Cable & Telecommunications Association said in a letter Tuesday to Congress.
NCTA president Kyle McSlarrow, who signed the letter, warned that payouts to cable “would offset -- and could far outweigh -- the $10 billion that the government is counting on from the recapture and sale of broadcasters’ analog spectrum.”
TV-station owners are pressing Congress to require cable carriage of their multiple digital-TV services, claiming that MSOs have competitive reasons to deny carriage. Current must-carry laws, narrowly upheld by the U.S. Supreme Court, have been interpreted to require cable carriage of a single broadcast-programming service.
The NCTA’s attack on so-called multicast must-carry was based on a legal analysis prepared by law firm Cooper & Kirk LLC, which the NCTA also gave to Capitol Hill lawmakers.
Cable has consistently attacked must-carry as a violation of the First Amendment, but with the help of Cooper & Kirk, the NCTA is starting to amplify Fifth Amendment concerns on the taking of private property -- a topic that has gained interest in Congress in the wake of the Supreme Court’s controversial June 23 ruling in Kelo vs. City of New London.
The NCTA is hoping that Congress will pass legislation this fall that ends the transition to digital broadcasting without expanding cable’s carriage obligations. Meanwhile, broadcasters have made multicast must-carry a legislative priority.
“I urge you to oppose the broadcasters' unconstitutional efforts to appropriate the valuable capacity in which cable operators have invested tens of billions of dollars to better serve their customers,” McSlarrow said.
“The NCTA's monopolistic plea for less competition and reduced program choice for consumers rings hollow,” the National Association of Broadcasters responded in a prepared statement.
“This is the same discredited argument made by the NCTA in 1992, when the U.S. Supreme Court upheld rules that resulted in an explosion of new programming options for viewers,” the NAB added. “We're optimistic that Congress will reject the call of the monopolist and embrace more choice for local television viewers.”