Cablevision Asks Supreme Court to Review Constitutionality of Must-Carry

Operator suggests market has been reshaped by competition

By John Eggerton -- Broadcasting & Cable, 1/28/2010 3:28:36 PM

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

Cablevision points out in its filing 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 What was once a cable monopoly, Cablevision concedes to the court, "has been replaced by vibrant competition."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 said.

"The continuing validity of that intrusion on constitutionally protected interests and the permissibility of expanding its application to new contexts present precisely the kind of important constitutional issues that should constitute the core of this Court's docket."

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.

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 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 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.

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. That argument could have wider implications.

One proposal floated for reclaiming spectrum from broadcasters for wireless broadband proposed must-carry for a cable-only HD signal as way to reduce the bandwidth broadcasters were using.

Cablevision argues that the Second Circuit's decision, which was backed by the National Association of Broadcasters, 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.

"The Supreme Court has wisely found that must-carry rules protect the public's access to free and local niche programming, including foreign language, religious, and independent TV stations," said NAB spokesman Dennis Wharton in response to news of the filing. "We're disappointed that gatekeeper pay cable operators are seeking to deny millions of Americans an opportunity to continue seeing these unique local TV stations."