Tribe Takes Cable's Top Video Case

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The National Cable & Telecommunications Association last Tuesday rolled out legal heavyweight Laurence H. Tribe to inveigh against potential federal rules that would require cable systems to carry multiple digital signals from over-the-air TV stations.

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

The National Association of Broadcasters has implored the 0Federal 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 — who in the mid-1990s represented Bell Atlantic Corp. in a Supreme Court First Amendment challenge of telco/cable cross-ownership rules — also claimed that a multiple signal carriage mandate would also seize a cable operator's property without just compensation, in violation of the Fifth Amendment.

In January 2001, the FCC agreed with cable that primary video meant "one" signal. Republican member 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.

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