Supreme Court Defers Decision On Hearing Must-Carry Challenge


The Supreme Court has punted on a decision on whether to hear Cablevision's challenge to the must-carry rules.

That is according to the list of appeals that were denied Monday May 3, which did not feature Cablevision vs. the FCC. The case had been up for consideration at the Justice's Friday private conference, after which a decision to take the case or deny it generally, but not always, comes out the following Monday.

One veteran attorney said the reason could be anything from one of the justices asking for more time to check conflicts of interest, to a substantive disagreement over taking the case to logistical issues. "You will never know," he added.

Cablevision in January asked the High Court to review the constitutionality of the must-carry rules, which require cable operators to carry local broadcast stations. The challenge was backed by most of the other major operators (represented by the National Cable & Telecommunications Association).

Cablevision had pointed out in its appeal that even more than a decade ago, the Supreme Court's decisions -- two of them -- upholding must-carry was razor thin. The cable operator says 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 What was once a cable monopoly, Cablevision concedes to the court, "has been replaced by vibrant competition."

The rationale for the Turner decisions has been gutted, the company says, while the FCC continues to subsume cable's editorial judgment. The commission has even expanded the rules to cover conduct that would not even be covered by the Turner rationale even if it were still relevant, the company says.

Specifically, Cablevision wants the court to hear the cable company's appeal of a Second Circuit decision upholding the FCC's must-carry mandate for station WRNN.

A three-judge panel of the Second Circuit back in June 2009 rejected Cablevision's challenge to an FCC order requiring carriage of WRNN New York in some Long Island communities under the market-modification provisions of must-carry. The full court in October rejected Cablevision's petition for a re-hearing. In the process, that court took an expansive view of the benefits of the must-carry rule, citing the Supreme Court's Turner decision and concluding that it did not mean to limit must-carry to the minimum of replicating a DMA.

In its Supreme Court filing Jan. 27, Cablevision asked the court why a cable operator should be compelled to carry programming of a broadcast station in an area in which the station lacks an over-the air audience.

In asking the court not to hear the appeal, the FCC and Justice Department said that even if "robust competition" should be a factor in some individual must-carry decisions, Cablevision had not established that there was robust competition in the WRNN case. It said that the Cablevision claim that "sweeping industry changes" had invalidated the Turner decisions was not properly before the court, and that even if it were, the case "would present a poor vehicle for resolving it" since the lower court did not rule on any sweeping First Amendment. "The record in this case does not contain the broad range of data that would be needed to evaluate the constitutionality of the must-carry statute under present circumstances," the FCC and Justice told the court in a brief opposing cert.