Broadcaster vs. broadcaster
Satellite seen as having uphill battle to overturn 'all or nothing' must-carry in court
By Paige Albiniak -- Broadcasting & Cable, 9/30/2001 8:00:00 PM
Satellite TV companies are going to have a hard time convincing the court to overturn a law that requires them to carry all local TV stations in all markets where they deliver any local station. That's according to some observers who watched them attempt to do just that in oral arguments last week before the Fourth Circuit Court of Appeals.
"We believe that the DBS drive to overturn the statute faces a high bar," wrote Legg Mason analysts Michael Balhoff and Blair Levin, the latter one-time chief of staff to former FCC Chairman Reed Hundt. "The satellite lawyers jumped pretty high on Tuesday, but probably not high enough, in our opinion."
Satellite lawyer Charles Cooper, of Cooper & Kirk, argued the statute is unconstitutional because it requires satellite TV companies to carry certain content and is also an unlawful taking of property. He argues that requiring them to carry all local stations in big cities, such as Los Angeles and New York, means they cannot offer any local TV services to smaller markets, such as, say, Richmond, where the circuit court is located.
Broadcast attorney Donald Verrelli, of Washington law firm Jenner & Block, argued that because Congress gave satellite companies the option not to carry any local TV stations, the license to carry them is voluntary. In other words, broadcasters argue, satellite companies are under no obligation to carry broadcasters, but if they "voluntarily" do so, they are obligated to carry all TV stations in that market. The voluntary nature of the license undermines satellite carriers' constitutional arguments, broadcasters say.
But "the government cannot burden a benefit with an unconstitutional requirement," says Andy Wright, acting president of the Satellite Broadcasting and Communications Association.
Because the law requires satellite carriers to carry all stations in all local markets they serve by Jan. 1, 2002, those carriers have asked the court to rule before that time.
The case was argued before judges Paul Neimeyer, H. Emory Widener Jr., and M. Blaine Michael, with Widener presiding.
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