Tribe Argues Cable's Primary-Video Case


The National Cable & Telecommunications Association Tuesday rolled out
legal heavyweight Laurence H. Tribe to inveigh against potential federal rules
that would require cable carriage of multiple digital channels provided by local
TV stations.

Tribe, a top constitutional scholar at Harvard Law School, pounded home the
NCTA's argument that mandatory carriage of anything more than a single
programming stream would violate cable operators' First Amendment right to
determine the programming lineups on their systems.

The National Association of Broadcasters has been imploring the Federal
Communications Commission to rule that cable carriage of a station's 'primary
video' should be interpreted to mean not just a single programming stream, but
any number of free programming services that a TV station can pack into its 6
megahertz of digital spectrum.

But in an 18-page submission to the FCC on the NCTA's behalf, Tribe asserted
that when the Supreme Court upheld analog must-carry in 1997, the court 'did not
grant broadcasters a permanent easement or property right of 6 MHz of space on
cable systems.'

Tribe also claimed that a multiple-signal-carriage mandate would also seize a
cable operator's property without just compensation, in violation of the Fifth

In January 2001, the FCC agreed with cable that primary video meant 'one'
signal. Republican commissioner Kevin Martin, who joined the agency five months
after the ruling, is urging reconsideration of the primary-video ruling.

FCC chairman Michael Powell voted with the majority to classify primary video
as one channel, but he was not chairman at the time of the vote.

His current chief of staff, Marsha MacBride, told an NAB audience in April
that Powell viewed the FCC's ruling as a bad policy outcome, but the correct
reading of the law.