Cable Programmers File Must-Carry Appeal

C-SPAN, Discovery, Weather Channel, TV One, A&E, and Scripps call rule an "unconstitutional burden"

By John Eggerton -- Broadcasting & Cable, 5/7/2008 2:17:00 PM

Cable programmers challenging the FCC's must-carry decision last fall to require cable operators to deliver a viewable TV station signal after the DTV transition--even if that means carrying both a digital and analog version--have fired their opening legal volley.

C-SPAN, Discovery, Weather Channel, TV One, A&E, and Scripps Networks filed a brief in the U.S. Court of Appeals for the District of Columbia outlining their beef with the decision. The companies filed suit against the rules in February.

The companies argue that requiring operators to deliver the same station twice is an "unconstitutional burden" on programmers' speech that will reduce the diversity of voices. They say the mandate is a violation of the First Amendment, and exceeds the FCC's authority.

"The commission failed to show how the record required the action, or to adequately explain a policy choice that makes digital-only carriage the solution for broadcast households, satellite households, telephone company-delivered video households, and digital cable households, but requires speech-limiting duplicative carriage for households serviced by hybrid analog-digital cable systems."