NCTA Backs Must-Carry Challenge

Association says even FCC suggests broadcast spectrum could be put to better use

By John Eggerton -- Broadcasting & Cable, 2/26/2010 12:27:00 PM

The National Cable & Telecommunications Association is among those supporting Cablevision's appeal of the must-carry rules at the Supreme Court.

The trade group Friday (Feb. 26) said it had filed a brief in support of the challenge. In that brief, NCTA cited the FCC's inquiry into whether broadcast spectrum could be reclaimed for wireless broadband as part of its argument (the FCC just this week outlined is reclamation/auction plan). "With even the Commission suggesting that broadcast spectrum should be put to better use, it is clear that broadcast television no longer serves an 'important' government interest to the extent that it used to," said NCTA.

NCTA said that "changed circumstance" has "drastically" shifted the balance between the government's interest in must-carry and its burden on speech.

Cablevision pointed 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 What was once a cable monopoly, Cablevision concedes to the court, "has been replaced by vibrant competition."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.

NCTA agrees. It points out that the High Court in upholding must-carry in the Turner cases recognized that the rule did impinge on speech, but pointed to cable's bottleneck power as requiring only intermediate scrutiny of its effects on speech, rather than strict scrutiny.

That has changed; cable is now faced with lots of competition. Given all that competition, must-carry's restrictions on cable speech does not pass muster under either strict or intermediate scrutiny, said NCTA in asking the court to hear the Cablevision challenge.

C-SPAN also filed a brief in support of the challenge earlier this week.

Specifically, Cablevision wants the court to hear its appeal of a Second Circuit decision upholding the FCC's must-carry mandate for station WRNN.