NCTA Tries 5th Amendment Tack
Washington -- The cable industry is giving prominence to a new legal argument, in addition to traditional First Amendment concerns, in opposing government-mandated carriage of digital-TV signals.
At a press conference here last Wednesday, National Cable Television Association officials said the forced carriage of digital and analog signals would violate the Fifth Amendment prohibition on taking private property without just compensation.
Dan Brenner, the NCTA's vice president of law and regulatory policy, said broadcasters that elect must-carry over retransmission consent are prohibited from paying for carriage, and no authority exists for the Federal Communications Commission to compensate operators.
While cable raised the Fifth Amendment issue in analog must-carry litigation stemming from the 1992 Cable Act, it decided to give the private-property issue more prominence in the context of digital must-carry.
The NCTA rolled out the new legal strategy at the same time that it announced that it had retained Harvard Law School professor Laurence H. Tribe to help fashion constitutional arguments against digital must-carry.
The NCTA filed comments last Tuesday with the FCC, which is considering ordering carriage of digital TV signals.
While the National Association of Broadcasters said carriage is required by law, none of the four major networks filed with the FCC in support of digital must-carry, NCTA president Decker Anstrom said.