Cablevision to Petition Supreme Court on Must-Carry

Operator will ask High Court to hear appeal of Second Circuit's upholding of FCC's must-carry mandate for WRNN

By John Eggerton -- Broadcasting & Cable, 12/22/2009 10:54:29 PM

Cablevision's New Year's plans include taking on must-carry in the Supreme Court, if it can convince the court to take the case.

A Cablevision spokesperson confirms that the cable operator plans next month to petition the High Court to hear its appeal of the Second Circuit's upholding of the FCC's must-carry mandate for station WRNN.

The company is taking aim at the entire must-carry regime armed with the decision by the D.C. Circuit earlier in Comcast v. FCC this year, which threw out the 30% cap on one cable operator's sub count. It plans to argue that the lack of robust competition and presence of a cable bottleneck no longer exist, and were the underpinnings of the Supreme Court's close decisions to uphold the rules in two earlier challenges by Turner.

Cablevision got a Dec. 9 stay of the Second Circuit's mandate for WRNN carriage pending the outcome of the company's request for a Supreme Court hearing. A source says the company was planning to challenge the WRNN decision with or without the Comcast decision, given the rise in competition in the marketplace, but that the D.C. decision just provided more ammo.  

A three-judge panel of the Second Circuit back in June 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 before the full court.

In the process, the 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.

Cablevision counters that the Second Circuit decision conflicts with the 1994 Turner I and II decisions narrowly upholding must-carry, as well as the D.C. Circuit's conclusion in the cable-cap case that "now that cable operators are subject to robust competition, the FCC can no longer identify the 'sufficient' basis" demanded by the Supreme Court in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) ('Turner I'), for imposing upon cable operators 'special obligations' like must carry."

A split in federal appeals court decisions is one of the tests for the Supreme Court's decision to hear an appeal, as are cases that implicate the First Amendment, which Cablevision argues this does.  

Cablevision concedes that the Second Circuit never responded directly to its assertion--both in the original appeal and the request for rehearing--that compelled carriage in the presence of robust competition violates the First Amendment. But it reads that as the "apparent conclusion" that the presence of robust competition is "irrelevant" to analysis under Turner.

Cablevision says that is "fundamentally at odds with the D.C. Circuits' decision." In striking down another type of FCC regulation of cable operators, the D.C. Circuit there determined that "[c]able operators . . . no longer have the bottleneck power over programming that concerned the Congress in 1992," said the company.

That continued bottleneck is central to earlier Supreme Court decisions--Turner I and II--upholding must carry, but the company points out other changes since the Turner cases, including the decreasing number of over-the-air viewers must-carry targets (down from about 40% to less than 15%) and that it is much easier to switch between off-air and cable programming than a decade ago (Turner I was in 1997).

The Second Circuit must think Cablevision has a shot at winning. According to a summary by Justice Ruth Bader Ginsburg of the judicial standard for a stay pending a cert petition (the official term for seeking Supreme Court review), there must be "a reasonable probability that four justices will consider the issue sufficiently meritorious to grant cert; 2) a fair prospect that the majority of the court will conclude that the decision was erroneous; 3) a likelihood that irreparable harm will result from the stay."

Cablevision argued that if it had to carry WRNN, it would have to make room for it by dropping Syfy or C-SPAN for a channel that it said its viewers didn't want.