Supremes Conference On Must-Carry Challenge

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Cablevision's challenge to the must-carry rules is up for consideration at the Supreme Court justice's Friday private conference.

According to the court, the various briefs in the case were distributed April 14 for conferencing on April 30. National Cable & Telecommunications Association, C-SPAN, Time Warner, and Discovery have all filed amicus briefs supporting Cablevision.

The Friday discussion of the case means a decision on whether to grant cert (hear the case) is likely to come Monday. That is not a guarantee. The court's recent decision to hear the video game violence case, for example, was conferenced last fall, pointed out one veteran attorney who has argued before the High Court. "But it is likely to come Monday."

Even the court says so. "Generally, if a case is considered at a Conference, viewers can expect that the disposition of a case will be announced on an Orders List that will be released at 10 a.m. the following Monday," the court explains on its Web site.

Cablevision in January asked the Supreme Court to review the constitutionality of the must-carry rules, which require cable operators to carry local broadcast stations.

Cablevision pointed out in its appeal to the court 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 What was once a cable monopoly, Cablevision concedes to the court, "has been replaced by vibrant competition." Rather than being an MVPD bottleneck, Cablevision suggests, the market has been reshaped into a wide-necked vase in which all flowers can bloom.

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 asks 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.

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