Discovery Takes Aim At Must-Carry

Says speaker preference analogous to that overturned in Citizens United case

By John Eggerton -- Broadcasting & Cable, 2/26/2010 1:23:00 PM

The must-carry rules don't have a lot of friends in the cable industry. Or put another way, a Cablevision challenge to the rules has a lot of friends.

Discovery Communications was the latest to file a Friend of the Court brief with the Supreme Court backing that challenge.

Among others to file so called amicus briefs were C-SPAN and the National Association of Broadcasters.

Discovery argues in its brief that by giving broadcasters preference--the rules require cable operators to carry any broadcaster who elects not to negotiate carriage payments--the rule makes second-class speakers of cable channels like Discovery. C-SPAN made a similar argument.

Discovery says that a basic tenet of First Amendment law is that "the Government cannot take the right to speak from some speakers and give it to others." But that is what the must-carry rules do, it argues.

Discovery used one of the court's most recent decisions to buttress its argument, its ruling in the Citizen's United case Jan. 21 overturning direct funding of political speech by corporations and unions. "Rather than competing on the merits of their content, broadcasters enjoy the benefits of a statutory preference for their speech over the speech of cable programmers," said Discovery, arguing that it was analogous to the preference that the court overturned in the Citizens United case, in which it held that "a governmental preference for one speaker over another "deprives the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration."

Discovery also echoed arguments made by Cablevision and others that the competitive landscape has changed sufficiently to moot the court's earlier reliance on a cable "bottleneck" to justify speech regulation.

Discovery urged the court to take the case "to determine whether the statute's clear preference for broadcasters' speech over cable programmers' speech can withstand First Amendment scrutiny under current marketplace conditions."

The chorus of NCTA and C-SPAN and Cablevision and Discovery was arguing that answer should be a definitive 'no.'