Washington

Discovery Takes Aim At Must-Carry

Says speaker preference analogous to that overturned in Citizens United case 2/26/2010 01:23:00 PM Eastern

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.'

September
October